Maryland Bar Journal Volume 6, Issue 3

LEADERSHIP • COMMUNITY • JUSTICE • ADVOCACY • ACCESS • TECHNOLOGY • YO U

Maryland

BAR JOURNAL MSBA. HOME OF THE LEGAL PROFESSION.

VOLUME 6 ISSUE 3

SPRING 2025

ADVOCATING FOR MARYLAND ATTORNEYS: MSBA's Focus on Tax Proposals, Security for the Profession, and Access to Justice

KEY FEATURES The Legal Landscape of Privacy: Why Lawyers Must Keep Up with Change Mental Illness and the Capacity to Parent Under Maryland Law Keeping the Human in HR When Using AI in the Workplace Timing Is Everything: The Productivity Secret Lawyers Need to Know How the Maryland Supreme Court's Decision in Katz Abosch Opens the Door to Exclusion of Experts

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Contents VOLUME 6 | ISSUE 3 | SPRING 2025

45 Mental Illness and the Capacity to Parent Under Maryland Law

78 Timing Is Everything: The Productivity

MSBA UPDATES

Secret Lawyers Need to Know

4 President's Message 6 MSBA's DEIA Forum 7 Upcoming Events 8 Solo and Small Firm Symposium 21 Maryland Bar Foundation Grant Recipient 30 2025 Professional Excursion: Mexico 123 Staff Profile: Jamal Adjamah 124 Executive Director's Message: Adapting, Advocating, Educating: MSBA’s Commitment to Maryland Attorneys INSIDE ANNAPOLIS 10 12

97 How to Solve the PerformanceWellness Conundrum

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MSBA Focuses on Tax Proposals and Security for the Profession in the 2025 Legislative Session MSBA Provides Resources to Prepare the Profession for Maryland’s Expanded Voir Dire Pilot Program MSBA Day

HEALTH AND WELLNESS 83 From Trials to Triumph: A Personal Story of Healing and Hope

86 Slam the Brakes! 6 Clients to Avoid . . .

If You Recognize Them

ARTIFICIAL INTELLIGENCE UPDATES 56 Generative AI in Law Firms: Balancing Innovation and Responsibility 64 Keeping the Human in HR When Using AI in the Workplace 68 A Lawyer’s Primer on AI Agents CAREER HIGHLIGHTS 28 What I've Learned: Emmanuel Fishelman 102 Off the Beaten Path: Richard L. Adams, III ACCESS TO JUSTICE 18

Maryland Access to Justice Commission Advances Efforts for Permanent Access to Counsel in Evictions Funding 24 Addressing the Crisis in Recruiting and Retaining Civil Legal Aid Attorneys Member Spotlights

106

Advance Directives: Drafting and Implementation

DISCOVER MORE

22 Delegate Sandy Rosenberg 50 Natasha Nazareth 62 J. Burke Miller 115 In Memoriam: Judge John McAuliffe 116 In Memoriam: Edward J. Gilliss 117 In Memoriam: Herb S. Garten

READ MORE ONLINE: Stay equipped and knowledgeable, every day. Visit MSBA.org for more exciting content.

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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MEMBER CONTENT COMMITTEE (2025-26 BAR YEAR)

IN-HOUSE EDITORIAL COMMITTEE

Publication Date: Spring 2025 Published quarterly by the Maryland State Bar Association, Inc. 520 W. Fayette St. Baltimore, Maryland 21201 Telephone: (410) 685-7878 (800) 492-1964 Website: www.msba.org Executive Director: Anna Sholl Chief Content Officer: Patricia Stockland Managing Editor: Colleen Aracri Advertising Sales: Association Media Group Subscriptions: MSBA members receive THE MARYLAND BAR JOURNAL as $20 of their dues payment goes to publication.

Others, $42 per year.

Natasha Nazareth, Emeritus Chair

Jessica Markham, Co-Chair

Corinne M. Pouliquen, Co-Chair

Anna Sholl, Executive Director

Amy Dilcher

Mark Dimenna

Jessica Duvall

Andrea Solan

Hillary Evans

Travys Harvey

Julie Hopkins

Andrea Terry

Lynette Kleiza

Jasmine N. Pope

Donald Quinn

Reena Shah

Dave Sidhu

Eric Steiner

POSTMASTER: Send address change to THE MARYLAND BAR JOURNAL 520 W. Fayette St. Baltimore, MD 21201 The Maryland Bar Journal welcomes articles on topics of interest to Maryland attorneys.

Proposed articles can be submitted through the MSBA website at msba.org/content-portal.

Advertising: Advertising rates will be furnished upon request. All advertising is subject to approval by the Editorial Advisory Board.

Association Media Group 901 34th Avenue North, Suite 7064 St. Petersburg, FL 33734 Chad Slager Operations and Technology cslager@associationmediagroup.com Member Content Committee Corinne M. Pouliquen, Esq., Co-Chair Jessica Markham, Esq., Co-Chair MSBA Officers (2024-2025) President: Raphael J. Santini President Elect: Marisa Trasatti Secretary: Natasha Dartigue Treasurer: Wm. Carl Isler Photography: Profile photographs provided

by Travis Marshall Photography unless otherwise noted.

Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Maryland State Bar Association, its officers, Board of Governors, the Editorial Board or staff. Publishing an advertisement does not imply endorsement of any product or service offered.

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MSBA.ORG | VOLUME 6 ISSUE 3

Colleen Aracri

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Contents (continued)

FROM BURNOUT TO BALANCE: REIMAGINING LAWYER SUPPORT SYSTEMS 76 Keeping Sane While Living with Another Attorney 78 Timing is Everything: The Productivity Secret Lawyers Need to Know 86 Slam the Brakes! 6 Clients to Avoid . . .

If You Recognize Them 90 Balancing the Scales: How Law Firms Can Support Attorney-Caregivers 97 How to Solve the Performance-Wellness Conundrum 112 The Silent Epidemic of Bullying In the Legal Profession ETHICS 118 Conflict of Interest in the Context of Successive Federal Employment FOR YOUR PRACTICE 34 What to Know About Maryland's Consumer Data Privacy Act 36 The Legal Landscape of Privacy: Why Lawyers Must Keep Up with Change 38 Fourth Circuit Court of Appeals Grants En Banc Hearing in Chatrie 42 U.S. Supreme Court Continues Effort to Balance the Fair Labor Standards Acts 45 Mental Illness and the Capacity to Parent Under Maryland Law 52 Understanding the 2024 Amendments to the Federal Rules of Evidence 54 Maryland Joins the Legal Battle Against "Forever Chemicals" 59 The Supreme Court of Maryland Deems the Child Victims Act of 2023 Constitutional 72 How Estate Planning Can Protect Your Clients’ Children’s Inheritance in the Event of a Divorce 100 How the Maryland Supreme Court's Decision in Katz Abosch Opens the Door to Exclusion of Experts 104 Two Principles From the Military That Every Trial Attorney Should Know 106 Advance Directives: Drafting and Implementation

SEND US A MESSAGE!

MARYLAND STATE BAR ASSOCIATION @MDSTATEBAR @MARYLANDBAR @MD_STATE_BAR Tell us your favorite part of the new Maryland Bar Journal on social media and using the hashtag: #MDBARJOURNAL MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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PRESIDENT'S MESSAGE | INSIGHTS & UPDATES

Strengthening Our Profession: Advocating for Judicial Security, Election Reform, and Tax-Free Legal Services This resolution encourages all state and local governments to adopt measures akin to the Judge Andrew F. Wilkinson Judicial Security Act by establishing task forces to examine courthouse security and recommend improvements. Notably, this resolution is the first that MSBA introduced at the ABA level, a milestone in our organization’s history.

As I reflect on my year so far as MSBA President, I am proud of the work we have undertaken to advance the interests of our members, the legal profession, and the public we serve. One of my primary initiatives has been to strengthen judicial security.

Through the Judicial Security Task Force, I have worked alongside a wide array of stakeholders to develop recommendations to improve courthouse security across Maryland. These efforts aim to ensure the safety of judges, attorneys, litigants, court personnel, and all who enter our courthouses.

Beyond my work at the state level, I have also taken this issue to the national stage. I led MSBA's effort to introduce a resolution at the American Bar Association's midyear meeting in Phoenix.

Another key priority during my tenure has been to address the judicial election process in Maryland. Currently, circuit court judges at the trial level are required to run in contested elections. This practice presents several challenges. Sitting judges are bound by ethical obligations to remain impartial and nonpartisan, yet political campaigning undermines this responsibility. Additionally, the expectation for attorneys to contribute to judicial campaigns raises ethical concerns and potential conflicts of interest, particularly if attorneys feel their relationships with judges could be affected by their support— or lack thereof.

Sitting judges go through a rigorous appointment process that prioritizes inclusivity and ensures the most qualified individuals are selected for our benches.

This makes contested elections unnecessary.

We are advocating for legislation this session to replace contested elections with retention

elections, a process already in place for appellate judges. Such a change would enhance public trust in the judiciary and uphold its commitment to impartiality and fairness.

MSBA remains the primary advocate for Maryland’s legal profession. Our mission is to ensure attorneys can effectively practice law, serve their clients, and earn a living while doing so. With Maryland facing a significant budget deficit, the legislature has repeatedly considered taxing legal services as a funding source. Over the past five years, MSBA has consistently stepped in to oppose and defeat such proposals. This year, we remain vigilant in Annapolis to protect the legal profession and the public from the harmful consequences of taxing legal services.

However, MSBA’s voice can only be as strong as its membership. To amplify our impact, I ask every member to recruit one additional colleague to join MSBA. By growing our membership, we strengthen our collective voice, ensuring that when we advocate, we do so loudly and effectively on behalf of the entire legal profession.

Let’s work together to make MSBA stronger and even more effective.

Raphael J. Santini, President

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MSBA.ORG | VOLUME 6 ISSUE 3

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MSBA UPDATES | MSBA IN THE COMMUNITY

MSBA’s DEIA Forum At MSBA’s recent DEIA Forum: The Pursuit of Excellence, distinguished judges shared their experiences and insights on making Maryland's courts more accessible and inclusive for all.

Hon. E. Gregory Wells, Appellate Court of Maryland, Hon. Jennifer S. Fairfax,

Montgomery County Circuit Court, and Hon. Ana D. Hernandez, Baltimore City District Court, offered candid perspectives on how the judiciary has evolved and what still needs to be done to ensure true equity in our court system.

MSBA continues to encourage and strengthen diversity, equity, inclusion, and accessibility within the association and the entire legal community.

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MSBA.ORG | VOLUME 6 ISSUE 3

UPCOMING

EVENTS APRIL 10 Litigation Section Awards Dinner

MAY 2 Young Lawyers Section 34th Annual Charity Event

MAY 8 Hot Tips in Workers’ Compensation

JUNE 4 - 6 Legal Summit

JUNE 5 Mix & Mingle: Worcester, Somerset, Wicomico, and Dorchester Counties

JUNE 5 Maryland Bar Foundation Annual Meeting

JUNE 5 MSBA Annual Business Meeting

OCTOBER 23 Maryland Bar Foundation 60th Anniversary Gala

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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MSBA UPDATES | MSBA IN THE COMMUNITY

Solo & Small Firm Symposium

MSBA’s 2024 Solo & Small Firm Symposium brought together attorneys from across Maryland for an engaging day of education, innovation, and networking. This year’s program, featuring five hours of CLE credit (including one hour of ethics), delivered actionable insights to help solo and small firm practitioners harness cutting-edge technology, improve practice management, and prepare for the future.

Throughout the day, attendees participated in facilitated roundtable discussions designed to foster collaboration and idea-sharing. Topics included scaling operations, transitioning from big firm practice to a small firm model, and modernizing practice management.

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MSBA.ORG | VOLUME 6 ISSUE 3

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INSIDE ANNAPOLIS | LEGISLATIVE OUTLOOK

MSBA Focuses on Tax Proposals and Security for the Profession in the 2025 Legislative Session Lawmakers in Annapolis are addressing the state’s budget deficit and looking for new revenue sources and economic growth opportunities to fund Maryland priorities in the 2025 legislative session. On the table are proposed tax cuts and increases, given the state’s projected historic budget deficit. High-income earners may face a tax increase while Governor Moore claims that nearly two-third of Marylanders will see their state taxes decrease. The budget proposal also includes lowering the corporate tax rate to encourage more business relocation and expansion in Maryland, eliminating the inheritance tax, and lowering the estate tax exemption. Federal policy changes from the new administration are also a consideration for lawmakers and advocates, given the potential impact on federal jobs, benefits programs, and funding for state programs.

As legislators consider new revenue sources to address the deficit, MSBA will keep an eye on funding and tax bills. In 2020 and 2024, lawmakers proposed lowering the sales tax but expanding the tax to include legal services and other professional services.

MSBA successfully defeated the prior proposals and remains ready to address any tax on legal services in the 2025 session. MSBA recognizes the current budget constraints and funding gaps for state priorities, but any proposed tax on legal services is not an equitable solution for Maryland businesses or those seeking legal services.

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MSBA.ORG | VOLUME 6 ISSUE 3

MSBA recognizes the current budget constraints and funding gaps for state priorities, but any proposed tax on legal services is not an equitable solution for Maryland businesses or those seeking legal services.

The safety and security of judges, attorneys, and other court personnel is essential to protect the profession and the public and to allow over 42,000 attorneys and judges in Maryland to work without fear.

MSBA’s Legislative Priorities for the 2025 session include: 1. Opposing a Tax on Legal Services: MSBA opposes any proposed sales tax increase that would tax legal services given the dramatic impact it will have on all aspects of the legal profession, as well as the reduced ability of individuals and businesses to access legal services.

Large law firms and corporations in Maryland will have an incentive to relocate out of state given tax advantages and increased competitiveness.

The proposed sales tax will discourage out-of-state clients to continue hiring Maryland law firms, as they would not have to pay a tax with comparable specialists out of state and will look for a more competitive rate in neighboring areas.

Small businesses that seek legal guidance and representation will face financial challenges with the proposed tax as they lack the ability to afford in-house legal departments and may forgo legal advice altogether given the cost.

A sales tax will lead to increased administrative costs to track, calculate, and process sales tax on billings and receivables, with a higher cost that could be passed on to clients.

A tax would hinder access to justice for vulnerable communities, undermining the fundamental principle of equal representation under the law.

The proposed tax creates ambiguity around what precisely constitutes a taxable service, potentially complicating compliance and enforcement efforts.

2. Promoting Judicial and Attorney Security: The safety and security of judges, attorneys, and other court personnel is essential to protect the profession and the public and to allow over 42,000 attorneys and judges in Maryland to work without fear. MSBA will continue to support legislation and funding requests to enhance security for the legal profession, including modernizing court structures, protecting personal data and enhanced privacy, and preventing future harm.

3. Sustained Funding for Access to Counsel in Evictions Law: MSBA joins its partner, Maryland’s Access to Justice Commission, in securing funding for the access to counsel in evictions law, and civil legal aid funding generally that allows attorneys to provide advice or representation to Marylanders navigate non-criminal legal issues affecting their livelihoods and families.

MSBA will continue to protect members, firms, and the future of the legal industry through ongoing advocacy and opposition to any proposed tax on legal services and support for the initiatives above. ____________ MSBA serves as the collective voice of Maryland’s legal profession, representing the interests of lawyers across the state from nearly every practice area, career stage, and demographic.

MSBA's nationally-recognized advocacy protects the profession on critical initiatives, including a proposed tax that would negatively impact all Maryland attorneys, ensuring the safety of the judiciary and attorneys, and securing civil legal aid funding. Your voice and expertise matter.

They allow us to conduct the most effective advocacy as we work together to educate and inform our representatives. Join today at www.msba.org.

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 11

INSIDE ANNAPOLIS | VOIR DIRE UPDATES

MSBA Provides Resources to Prepare the Profession for Maryland’s Expanded Voir Dire Pilot Program

BY BOB BERSHAD, ESQ.

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MSBA.ORG | VOLUME 6 ISSUE 3

Courts across the country are considering and implementing reforms designed to improve fairness and reduce bias in the jury selection process. In January 2025, the Maryland Judiciary began implementing a Pilot Program for Expanded Voir Dire, pursuant to Rule 16-310, as part of an overall review and reform of the jury selection process.

The purpose of the pilot program includes gathering information and experience that may be used to: 1.

Study the effects of expanded voir dire on the effectiveness and efficiency of jury selection, case management, juror satisfaction, public perception of the trial process, court operations, and related concerns;

2.

Develop guidance and education to assist courts, attorneys, and litigants in the implementation of expanded voir dire statewide; and

3.

Inform efforts of the Standing Committee on Rules of Practice and Procedure and the Supreme Court to consider whether amendments to Rules 2-512 and 4-312 are appropriate.

MSBA has been engaged in the process through participation and comments to the Maryland Judiciary’s Standing Committee on Rules of Practice and to the Supreme Court of Maryland, the re-establishment of MSBA’s Special Committee on Voir Dire to provide updated model voir dire questions, and participation in the Judiciary’s Pilot Program Advisory Board.

MSBA’s Updated Model Voir Dire Questions MSBA’s Special Committee on Voir Dire provides updated model voir dire questions in response to a request from the Maryland Judiciary’s Pilot Program Advisory Board. The questions are not intended to be exhaustive, exclusive, or compulsory. Rather, they are designed to assist those participating in the Pilot Program to implement the use of expanded voir dire.

The Pilot Program with expanded voir dire will cover eight Maryland circuit courts as a representative sample. MSBA will continue to update members on the Pilot Program and its impact on your practice, given this significant update to the jury selection process through the Program.

The resource is divided into updated questions for criminal and civil trials, followed by a new section with examples of expanded voir dire questions about implicit bias, damages (civil), jury verdicts, legal system experience, and personal background. MSBA’s Special Committee on Voir Dire will remain active during the Pilot Program and will continue to provide updated versions of questions on the page.

Maryland attorneys are encouraged to submit suggestions for additional updates or questions to feedback@msba.org.

Pilot Jurisdictions and Judges Twenty-two (22) judges from eight (8) jurisdictions will participate in the expanded Voir Dire Pilot Program: Allegany County: Judge Jeffrey Getty Anne Arundel County: Judge Pamela Alban, Judge Michael Malone, Judge Robert Thompson Baltimore City: Judge Troy Hill, Judge Jeannie Hong, Judge Lynn Stewart Mays, Judge Jennifer Schiffer, Judge Martin Schreiber, Judge Hope Tipton

Maryland Judiciary Resources The Maryland Judiciary created a Maryland Attorney Packet with instructions to attorneys with cases in the Pilot Program, including a menu of types of expanded voir dire available to pilot judges for the jury selection process.

A copy has also been sent to the pilot judges, who may use

MSBA has been engaged in the process through participation and comments to the Maryland Judiciary’s Standing Committee on Rules of Practice and to the Supreme Court of Maryland, the re-establishment of MSBA’s Special Committee on Voir Dire to provide updated model voir dire questions, and participation in the Judiciary’s Pilot Program Advisory Board.

Carroll County: Judge Maria Oesterreicher, Judge Richard Titus Cecil County: Judge Cameron A. Brown

any of the listed styles or a combination of styles during voir dire. These include: 1.

Traditional voir dire with additional questions for the intelligent exercise of peremptory strikes;

Montgomery County: Judge Sharon Burrell, Judge Jill Cummins, Judge David Lease, Judge John Maloney, Judge Michael McAuliffe, Judge Margaret Schweitzer

2.

Individual juror voir dire at the bench or outside the trial courtroom, i.e., a conference room, or another courtroom if available;

Worcester County: Judge Brian Shockley

3.

Attorney-led voir dire of a panel;

MSBA Voir Dire Page and Updated Model Voir Dire Questions MSBA has created a Voir Dire Resource and Insights Page for the legal profession to access relevant resources and updates about the Pilot Program. MSBA will share updates on the Pilot Program and additional reforms there, including the following:

4.

Questionnaires; and

5.

Limited opening remarks before the beginning of voir dire.

Charles County: Judge Makeba Gibbs, Judge William Greer

The packet also includes a list of pilot jurisdictions and pilot judges, as well as survey questions for attorneys to complete at the end of each jury selection for data collection and feedback to the Pilot Program Advisory Board through June 2025.

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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| RECENT EVENTS MSBA UPDATES | MSBA DAY INSIDE ANNAPOLIS

A DVO C ACY AT WO R K

M A K I N G T H E VO I C E O F T H E L E G A L P R O F ES S I O N heard

On February 11, 2025, MSBA members gathered in Annapolis for MSBA Day, an annual event dedicated to legislative advocacy and engagement with Maryland’s General Assembly. As the leading voice of the legal profession in Maryland, MSBA continues to advocate for policies that protect attorneys, judges, and the broader legal system while ensuring access to justice for all Marylanders.

who shared his deeply personal perspective as the son of a judge who faced coordinated attacks due to his position. Corderman’s moving statements illustrated that the growing safety concerns for legal professionals is a long-standing issue, emphasizing why it is a top priority for the 2025 legislative session.

MSBA’S 2025 LEGISLATIVE PRIORITIES

THE ROLE OF MSBA’S LAWS COMMITTEE

Attorneys, legal professionals, and community partners arrived at Governor Calvert House to kick off a day of advocacy. MSBA President Raphael J. Santini welcomed attendees, recognizing their commitment to shaping Maryland’s legal landscape. He emphasized that MSBA’s advocacy efforts directly impact the profession, whether by defeating harmful legislation, ensuring judicial security, or securing funding for vital legal aid programs.

Before concluding the morning session, Kelly Hughes Iverson, co-chair of the MSBA Laws Committee, outlined MSBA’s process for monitoring legislation. She explained how MSBA evaluates bills based on their impact on the legal profession and access to justice and encouraged members to stay engaged in advocacy efforts throughout the session.

Ensuring the safety of Maryland’s legal professionals remains a top priority for MSBA. Santini highlighted MSBA’s support of HB789/SB621, a bill designed to establish minimum security standards in Maryland courtrooms. This initiative builds on last year’s Judge Andrew Wilkinson Judicial Security Act, which improved protections for judges following his tragic murder.

Santini thanked participants for “joining us from all over the state and from so many different practice areas" and shared, "Your expertise, experience, and client stories are the most powerful tools we have in ensuring our voices are heard."

The morning opened with remarks from key state leaders, including Maryland Chief Justice Matthew Fader, who spoke on the urgent need for enhanced judicial security and the varying security standards across the state, and Senator Paul Corderman,

Additionally, former Attorney General Brian Frosh provided an advocacy training session, emphasizing the importance of direct outreach to legislators.

Frosh encouraged attorneys to build relationships with lawmakers and to continue following up beyond MSBA Day to ensure their voices remain heard.

Following the opening session, MSBA members participated in legislative briefings, where they received in-depth analysis on three key policy issues.

JUDICIAL AND ATTORNEY SECURITY

Santini also emphasized MSBA’s ongoing work to develop long-term solutions for

As the leading voice of the legal profession in Maryland, MSBA continues to advocate for policies that protect attorneys, judges, and the broader legal system while ensuring access to justice for all Marylanders.

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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protecting court personnel and attorneys from threats in the legislatively created Task Force on Judicial Security.

OPPOSITION TO THE TAXATION OF LEGAL SERVICES

For the third time in recent years, Maryland lawmakers are considering a sales tax on legal services. MSBA has successfully defeated similar proposals in 2020 and 2024 and remains firmly opposed to any attempt to impose such a tax in 2025.

Grayson Wiggins of the Maryland Chamber of Commerce and Steven Rinaldi of the MSBA Business Law Section outlined the devastating impact this tax would have on small businesses and individual clients.

Rinaldi emphasized that women and minorityowned small businesses—which often rely on affordable legal guidance—would 16

MSBA.ORG | VOLUME 6 ISSUE 3

be disproportionately affected, making it harder for entrepreneurs to establish and maintain their businesses. MSBA will continue to monitor this issue and oppose any proposed legislation to tax the profession.

FUNDING FOR THE ACCESS TO COUNSEL IN EVICTIONS (ACE) PROGRAM

The Access to Counsel in Evictions (ACE) law has been a game-changer in preventing wrongful evictions and keeping Maryland families housed. However, without legislative action, funding for the program will expire in 2027.

Michelle Siri, executive director of the Maryland Legal Services Corporation, urged support for SB154/HB103, which would make ACE funding permanent. The program has been highly successful, with 88% of tenants who wanted to remain

in their homes successfully doing so.

Additionally, for every $1 invested in ACE, the state saves $4 in social service costs, including reduced spending on homeless shelters, emergency medical care, and law enforcement.

ENGAGING WITH LAWMAKERS

Following the briefings, MSBA members headed to the Maryland Senate and House buildings to meet with lawmakers.

Over the course of the morning, MSBA members participated in nearly 20 meetings with legislators, including Delegates Marlon Amprey, Jason Buckel, Regina Boyce, and LaToya Nkongolo, as well as Senators Katie Fry Hester, Shelly Hettleman, Jeff Waldstreicher, and Chris West.

MSBA members provided legislators with practical insights on how proposed bills

would impact attorneys, courts, and the general public. Many lawmakers expressed appreciation for the expertise and real-world experiences that legal professionals bring to the policymaking process.

LOOKING AHEAD: A CALL TO ACTION

MSBA Day 2025 is just one part of a larger advocacy effort. MSBA urges members to track key legislation that affects the legal profession, participate in advocacy initiatives through MSBA’s Office of Advocacy and Government Affairs, and continue engaging with legislators to ensure that the legal community has a strong voice in shaping Maryland’s laws.

LEARN MORE

MSBA urges members to track key legislation that affects the legal profession, participate in advocacy initiatives through MSBA’s Office of Advocacy and Government Affairs, and continue engaging with legislators to ensure that the legal community has a strong voice in shaping Maryland’s laws.

FOR MORE INFORMATION ON MSBA’S LEGISLATIVE INITIATIVES, UPCOMING BILLS, AND WAYS TO GET INVOLVED, VISIT WWW.MSBA.ORG/ADVOCACY OR CONTACT ADVOCACY@MSBA.ORG.

MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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ACCESS TO JUSTICE COMMISSION | UPDATE

Maryland Access to Justice Commission Advances Efforts for Permanent Access to Counsel in Evictions Funding THE MARYLAND ACCESS TO JUSTICE COMMISSION (A2JC) remains

BY REENA SHAH, ESQ.

a critical advocate for ensuring access to legal representation in eviction cases, with a focus on securing permanent funding for the Access to Counsel in Evictions (ACE) program. This program, established in 2021, provides income-eligible Marylanders with the right to legal representation during eviction proceedings. Since its inception, ACE has proven to reduce eviction rates, save the state money, and address inequities in the justice system.

Broad Engagement Across the Legal Community A2JC has worked tirelessly to engage stakeholders and amplify its advocacy efforts. On January 13, the Public Interest Law Committee (PILC) hosted its 2nd Annual Legislative Preview, drawing over 85 attendees and representatives from 15 organizations, including the Office of the Public Defender, the Office of the Attorney General and numerous 18

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In fiscal year 2024 alone,

ACE ATTORNEYS CLOSED OVER civil legal aid groups. The event highlighted legislative priorities, such as increasing access to civil legal aid and strengthening tenant protections, but also covered a broad swath of legal issues that are harmful to vulnerable Marylanders, including tax sales, expungements, consumer debt, immigration and more. By coordinating advocacy and strategic communications efforts, A2JC and PILC aim to build momentum and ensure alignment on key legislative goals, including the permanent funding of ACE. Legislative Priorities: Why Permanent Funding for ACE Is Critical A cornerstone of A2JC’s legislative efforts is securing permanent funding for the ACE program, as the current funding from the state’s abandoned property fund is set to sunset in 2027. Without permanent funding, the program’s success and long-term sustainability are at risk.

The program’s funding challenges stem from the high volume of eviction cases in Maryland, with over 400,000 cases filed annually—one of the highest rates in the country. While the program is currently supported by $14 million annually from the abandoned property fund until 2027, an additional $6–10 million per year is required to meet the full scope of needs statewide and there needs to be ongoing investment in the program for it to continue to keep Marylanders housed.

The importance of the ACE program is demonstrated by its success. In fiscal year 2024 alone, ACE attorneys closed over 9,100 cases, benefiting more than 21,000 Marylanders, including 9,100 children. The program proved to be 88% effective in preventing eviction or disruptive displacement for those tenants who wanted to

9,100

remain in their homes. A2JC Executive Director Reena Shah highlighted these points in her January 15 testimony before the Senate Budget and Taxation Committee in support of Senate Bill 154 (SB154), cross-filed with House Bill 103 (HB103). Sponsored by Senator Hettleman and Chair Guzzone, the bill seeks to lift the sunset provision on the program’s funding, ensuring consistent support for ACE’s continued implementation.

Shah emphasized that ACE has been particularly effective in addressing disparities, as Black women and single mothers are disproportionately affected by evictions.

cases

BENEFITING MORE THAN

21,000 Marylanders INCLUDING

9,100 children

She also discussed how investing in ACE in a tight budget year is the right thing to do because of how the program saves the state money. For every $1 spent on the program, the state receives almost $4 in return. In just the first year, the state saved over $45M dollars because of the ACE program. If the ACE program's funding is left to expire, not only will Marylanders will lose their homes, but the state will have to pay the heavy price tag of shelter costs, medical expenses and it will see declines in educational achievement and economic prosperity.

ACE Task Force: Addressing Implementation Challenges In its fifth annual report, delivered in January 2025, the Access to Counsel in Evictions Task Force, chaired by Shah at the request of Attorney General Anthony Brown, outlined several key recommendations to strengthen the program’s implementation.

Establishing a Permanent Funding Source The Task Force recommended that the Maryland General Assembly secure a permanent funding source for the ACE program by lifting the sunset on the $14 million annually provided through the state’s abandoned property fund. While this funding is critical, it is not sufficient to meet the program’s projected annual costs of $20–24 million. The Task Force also urged the legislature to provide supplemental funding to close this gap, ensuring that all income-eligible tenants across Maryland can access the representation they need.

Standardizing Implementation Across Courts The Task Force emphasized the importance of consistent implementation of the ACE law in courts statewide. Currently, tenants' experiences under the ACE program can vary depending on their location,

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As A2JC continues its advocacy for permanent funding, the stakes are clear: without a stable financial foundation, the ACE program’s ability to deliver equitable outcomes and reduce evictions across Maryland could be compromised.

with some courts adopting more streamlined processes than others. The Task Force called for greater standardization in court procedures and forms, including the use of uniform language to notify tenants of their right to access counsel, an introductory video explaining the ACE program and a bench card for judges to name a few. These steps are vital to ensuring equitable access to legal representation for all tenants, regardless of where they live in Maryland.

Raising Awareness Through Communication Strategies The Task Force identified the need for a coordinated communications strategy to inform tenants of their rights under the ACE law and how to access legal representation.

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Many eligible tenants remain unaware of the program until they are in court, which limits their ability to prepare a defense or seek assistance in advance. The Task Force recommended clearer language on eviction notices that are sent from courts, administrative agencies and landlords, tenant outreach campaigns, and partnerships with community organizations to increase awareness and utilization of the program.

Improving Attorney Recruitment and Retention Staffing remains a significant challenge for the ACE program, particularly in rural areas. The Task Force called for competitive salaries and professional development opportunities to attract and retain skilled attorneys.

It also highlighted the importance of expanding legal education initiatives, such as housing justice clinics at law schools and fellowships for new attorneys, to build a pipeline of future ACE lawyers.

Moving Forward As A2JC continues its advocacy for permanent funding, the stakes are clear: without a stable financial foundation, the ACE program’s ability to deliver equitable outcomes and reduce evictions across Maryland could be compromised.

With support from key stakeholders, including the Maryland Legal Services Corporation, civil legal aid organizations, and the Office of the Attorney General, A2JC is committed to ensuring that ACE remains a cornerstone of Maryland’s access to justice initiatives.

MARYLAND BAR FOUNDATION | GRANT RECIPIENT

MBF SUPPORTS

Women Moving Forward

Since its inception in 2008, the Women Moving Forward (WMF) Re-entry Conference has been held in partnership with the Maryland Correctional Institution for Women (MCIW). The conference was initiated by the National Association of Women Judges (NAWJ), a leading organization dedicated to ensuring equal justice and access to the courts. in collaboration with other groups and individuals concerned about the welfare of incarcerated women.

The primary objective of this annual conference is to provide women who are within six to 18 months of release with resources and information to support their successful return to the community. Attendees engage in comprehensive workshops on a variety of topics such as housing, money, and credit management, obtaining employment, access to health care, educational opportunities, family reunification, and tips on successfully navigating parole and probation requirements. The conference also addresses challenges such as coping with trauma, substance abuse, and addressing mental health concerns.

The WMF seeks to provide participants with a true conference experience—including the provision of conference bags containing the conference program, a journal, and other assorted items such as a calendar, toiletries and other valuable items donated by our partners and sponsors. Keynote speakers and previously justice impacted women from MCIW share their experiences and inspire the attendees to plan for their own success.

In their post-conference evaluations, the women provide feedback on what they have learned:

“

Being a convict doesn't mean I can't be a successful person.

“

We are not alone after release.

“

“

“

“

How to address incarceration when interviewing.

How to take advantage of resources.

Even though I am a convicted felon, my life does not end here.

The importance of advocating for yourself.

By addressing the multifaceted needs of participants, the WMF Re-entry Conference fosters a pathway to empowerment and reintegration, reflecting a steadfast commitment to transforming lives and building stronger communities. For more information about the conference, please go to www.wmfmd.org.

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ACCESS TO JUSTICE |

COMMISSIONER PROFILE

Sandy Rosenberg A Lifetime of Advocacy for Justice and Equity FOR OVER FOUR DECADES, Delegate Sandy Rosenberg has served as a leading voice in the Maryland General Assembly. As its longest-serving member, he has consistently championed legislation that increases access to justice for all Marylanders.

For attorneys throughout the state, his career provides a path in leveraging the law to advance fairness, equity, and community well-being. Delegate Rosenberg has been a member of the Access to Justice Commission since 2015.

A Lifelong Commitment to Justice Delegate Rosenberg’s dedication to access to justice began in his youth, inspired by Anthony Lewis’s groundbreaking book, Gideon’s Trumpet, which chronicles the landmark case establishing the right to counsel in criminal matters. This formative experience shaped his view of the law as a tool for public service and equity, leading him to pursue a career where he could influence systemic change.

His legislative career has been marked by his unwavering focus on ensuring legal representation for vulnerable populations. He is a champion of the "Access to Counsel in Evictions" law, a response to the urgent housing crises exacerbated by the COVID-19 pandemic. This legislation ensures that tenants facing eviction have access to legal representation, addressing a systemic imbalance where landlords often have counsel while tenants are left unrepresented.

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Safe and decent housing is a basic human right,” he asserts. “If we, as legislators, establish laws to protect this right, it is incumbent upon us to ensure that those laws are accessible and enforceable for everyone.”

Balancing the Scales in Housing Court Delegate Rosenberg’s leadership on access to counsel reflects his broader philosophy: justice should be accessible to everyone. He has highlighted the inequities in Maryland’s housing court system, where landlords may be represented by non-attorney professionals without attorney involvement or supervision, but tenants must secure licensed attorneys or have allied legal professionals who are supervised by an attorney. His advocacy has sought to address this disparity, promoting legislation to provide tenants with fair representation and a fighting chance in rent court.

“Safe and decent housing is a basic human right,” he asserts.

“If we, as legislators, establish laws to protect this right, it is incumbent upon us to ensure that those laws are accessible and enforceable for everyone.”

The "Access to Counsel in Evictions" law, now under consideration for permanent funding, represents a culmination of years of advocacy. It not only levels the playing field but also demonstrates the economic and social benefits of reducing evictions, such as maintaining family stability and minimizing disruptions in children’s education. Delegate Rosenberg is the sponsor of a bill in the House of Delegates, HB103, that seeks to make the existing source of funding for the ACE law, which is set to expire in 2027, permanent.

Mentoring the Next Generation of Legal Advocates Recognizing the critical role attorneys play in advancing justice, Delegate Rosenberg has invested heavily in mentoring the next generation of legal professionals. As a co-instructor of legislation classes at both Maryland’s law schools, he has inspired countless students to engage in public service. His legacy includes alumni who now serve as legislative leaders and staffers, including Maryland Senate President Bill Ferguson.

Moreover, Delegate Rosenberg has been a key advocate for loan repayment assistance programs, such as the Janet Hoffman Loan Assistance Repayment Program. This initiative helps law graduates pursue careers in public service by alleviating the financial burdens of student debt. He sees such programs as essential for fostering a pipeline of attorneys dedicated to representing underserved communities.

Expanding the Vision of Access to Justice Delegate Rosenberg’s legislative achievements extend beyond housing. He has authored and supported numerous measures that direct funds from legal settlements toward systemic improvements. A notable example includes legislation ensuring that proceeds from consumer protection lawsuits, such as those against negligent landlords, are allocated to housing-related justice initiatives. This creative use of legal settlements exemplifies his ability to connect policy innovation with community impact.

In addition to these legislative victories, Rosenberg supports exploring new avenues for addressing legal deserts. He has expressed openness to reforms that empower allied legal professionals, acknowledging the critical shortage of lawyers available to serve low- and middle-income individuals. “What’s fair for one party should be fair for the other,” he argues, emphasizing his belief in equitable access to legal resources.

A Legacy Rooted in Service Delegate Rosenberg’s work on the Pimlico Community Development Authority illustrates his holistic approach to community justice. By advocating for investments in neighborhoods surrounding the Pimlico Racetrack, he has demonstrated how urban redevelopment and legal empowerment can intersect to revitalize communities.

His tenure in the legislature is a testament to the power of persistence and principle. As he continues to mentor and inspire Maryland’s legal community, Delegate Rosenberg remains a stalwart advocate for a more just society. His career serves as a reminder that the law is not only a tool for resolving disputes but also a means to uplift individuals and transform communities.

Maryland’s legal community owes much to Delegate Sandy Rosenberg’s vision and dedication. His efforts to expand access to justice have reshaped Maryland’s legal landscape, ensuring that vulnerable populations have the support they need to navigate complex legal systems. As the legal profession faces new challenges, Delegate Rosenberg’s work serves as a reminder of the importance of advocacy, mentorship, and service in building a more equitable society.

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ACCESS TO JUSTICE |

UPDATE

Addressing the Crisis in Recruiting and Retaining Civil Legal Aid Attorneys

BY COLLEEN M. ARACRI, ESQ.

The very system meant to ensure justice is facing a growing crisis, however: difficulty recruiting and retaining civil legal aid attorneys.

Access to justice is a fundamental principle of a fair society, and many Marylanders rely on civil legal aid attorneys for representation in critical matters such as housing, domestic violence, and public benefits disputes. The very system meant to ensure justice is facing a growing crisis, however: difficulty recruiting and retaining civil legal aid attorneys. While a variety of factors contribute to this problem, without systemic solutions, the justice gap will continue to widen.

The Financial Realities of Civil Legal Aid Attorneys Civil legal aid attorneys play an essential role in advocating for society's most vulnerable populations, yet there is a significant shortage of lawyers entering and staying in this field.

Many legal aid organizations struggle to fill vacancies, and those who do take on these roles often leave within a few years.

The financial reality of working as a civil legal aid attorney is one of the primary causes of

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attrition. Civil legal aid organizations rely heavily on government grants, philanthropic donations, and competitive funding sources, which are often insufficient to offer competitive salaries.

Attorneys in these roles typically earn far less than their counterparts in private practice or even in other public sector positions.

According to the 2023 NALP Public Service Attorney Salary Survey, entry-level legal aid attorneys earn a median salary of $64,200— significantly lower than the median for public

defenders and private sector attorneys. Even with 11–15 years of experience, the median salary for legal aid attorneys reaches only $86,000, far below the six-figure earnings of private sector counterparts. This disparity discourages many law graduates from pursuing careers in legal aid.

The financial strain is exacerbated by the skyrocketing cost of legal education. Currently, law school tuition averages $51,193 annually, with additional living expenses bringing the total three-year cost to over $230,163. Many law students graduate with significant debt, leading them to prioritize higher-paying positions over lower-salaried public service roles.

Adding to the financial strain is the uncertainty surrounding federal student loan forgiveness programs, such as Public Service Loan Forgiveness (PSLF). PSLF allows federal student loan borrowers to work for a nonprofit employer for 10 years and receive loan forgiveness that is not considered taxable income. For many borrowers burdened by huge amounts of student debt, PSLF feels like their only hope of achieving financial stability while working in public service. The prospect of loan forgiveness has been a lifeline for civil legal aid attorneys, enabling them to choose meaningful, albeit lower-paying, careers. Recent debates over the continuation of PSLF have left many questioning its future, however. For new attorneys already navigating modest salaries, the risk of losing student loan relief is a significant deterrent to entering or staying in public interest work.

Mental Health Challenges in Legal Aid The financial hurdles are compounded by the profound emotional demands of civil legal aid work. Civil legal aid attorneys frequently engage with clients facing life-altering crises, including domestic violence, eviction, and systemic inequities. This exposure leads to secondary trauma, a condition where individuals absorb the emotional burdens of those they serve. Studies show that attorneys working with trauma-exposed clients report significantly higher rates of post-traumatic stress, depression, and functional impairment compared to other professions.

MSBA’s Lawyer Assistance Program (LAP) MSBA’s Lawyer Assistance Program (LAP) is one of the few resources specifically geared towards attorneys facing mental health challenges. This program offers resources to help attorneys manage the stress and secondary trauma inherent in their work, including LAP provides free, confidential counseling services, peer support networks, and wellness resources designed to address mental health concerns. By fostering a culture of care, LAP ensures that attorneys have the tools they need to navigate the emotional and psychological challenges of their profession.

Additionally, LAP and the Access to Justice Commission partnered to bring a four-part series on secondary trauma to civil legal aid organizations February 4 to March 18, 2025.

Programs like these are critical not only for the individual well-being of attorneys but also for organizational stability.

When attorneys feel supported, they are more likely to remain in their roles, reducing turnover and ensuring continuity in client services.

The Need for Systemic Solutions While initiatives like the LAP are crucial, they address only part of the problem. To recruit and retain civil legal aid attorneys effectively, broader systemic solutions are necessary. Increased funding for legal aid organizations is essential. Federal and state governments must prioritize funding that allows these organizations to offer competitive salaries, hire additional

The financial reality of working as a civil legal aid attorney is one of the primary causes of attrition.

Civil legal aid organizations rely heavily on government grants, philanthropic donations, and competitive funding sources, which are often insufficient to offer competitive salaries.

The effects of secondary trauma are not limited to individual well-being. Attorneys experiencing burnout or emotional fatigue may struggle with decision-making, client interactions, and job performance, further straining already under-resourced legal aid organizations. For many attorneys, the passion that draws them to this work is gradually eroded by the relentless demands and emotional labor involved. Despite these challenges, mental health support tailored for legal professionals remains scarce.

staff to reduce caseloads, and provide necessary resources for attorneys. Public-private partnerships and innovative funding models, such as impact litigation funds, could also bolster financial support.

Protecting and expanding loan forgiveness programs like PSLF is another vital step. PSLF’s structure—offering tax-free forgiveness after 10 years of public service—has been transformative for attorneys in civil legal aid roles. Ensuring its continuation and expanding awareness about its benefits would alleviate financial burdens and make public interest careers more viable.

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States can complement federal efforts by creating their own loan repayment assistance programs specifically for legal aid attorneys.

These measures would provide additional financial relief for young lawyers and strengthen the pipeline of talent into the sector.

Further, addressing the mental health challenges of legal aid work requires sustained attention. The MSBA’s LAP should serve as a model for other states and organizations. Legal aid offices must integrate wellness initiatives into their workplace culture and ensure that attorneys have access to resources that address secondary trauma and burnout. Programs that support mental health not only improve individual well-being but also enhance the overall effectiveness and stability of legal aid organizations.

Technology and innovation also have a role to play in reducing barriers to justice. Tools such as online legal portals, automated document preparation, and virtual consultations can streamline processes and alleviate some of the burden on attorneys. These advancements should be leveraged to enhance efficiency without replacing the human element that is crucial to legal aid work.

Additionally, systemic changes are necessary to address the root causes of the justice gap. Increasing pro bono participation among private attorneys, expanding access to legal education for underrepresented communities, reforming regulations to ensure that allied legal professionals can start meeting the demand for legal services and amending laws that disproportionately impact vulnerable populations are all essential components of a broader solution.

Access to counsel is recognized as a potent and cost-effective solution to address the imbalance and even the scales of justice, but the success of these programs depends on being able to retain and recruit attorneys to these roles. By addressing funding disparities, protecting loan forgiveness programs like PSLF, supporting mental health, and championing systemic reforms, we can ensure that these essential professionals continue to provide the access to justice that every individual deserves.

The path forward requires collaboration across the legal community, government, and society. Together, we can strive to build a more equitable system—one where civil legal aid attorneys have the resources and support they need to thrive, and where access to justice is a reality for all.

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Civil legal aid attorneys frequently engage with clients facing life-altering crises, including domestic violence, eviction, and systemic inequities. This exposure leads to secondary trauma, a condition where individuals absorb the emotional burdens of those they serve.

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CAREER HIGHLIGHTS | WHAT I'VE LEARNED

Emmanuel Fishelman ZIPIN, AMSTER & GREENBERG, LLC

“

Effective communication is much more than just speaking the same language . . . it’s patience, reliability, and showing courtesy.

Photo courtesy of Travis Marshall Photography 28 MSBA.ORG | VOLUME 6 ISSUE 3

A DECADE OF DEDICATION AND GROWTH IN THE LEGAL PROFESSION

EMMANUEL A. “MANNY” FISHELMAN, a partner at Zipin, Amster & Greenberg, LLC, and one of Maryland’s

Hispanic personal injury litigators, has dedicated his career to seeking justice for members of Maryland’s minority and immigrant communities.

Fishelman knew from an early age that he wanted to be a lawyer. Encouraged by family and friends who recognized his natural talent for advocacy, he entered law school intending to pursue a political career. His focus shifted after discovering a passion for immigration law, which ultimately led to an unexpected but fulfilling career in personal injury litigation.

“I like to say that I didn’t pick personal injury, but that it picked me,” Fishelman reflects. Since joining a boutique litigation firm after law school, he has fully embraced this area of practice, becoming a zealous advocate for his clients.

His practice focuses largely on serving Spanish-speaking clients, many of whom are undocumented immigrants from Central America. Fishelman believes his fluency in Spanish and deep understanding of his clients’ unique challenges set him apart from other litigators.

“Effective communication is much more than just speaking the same language,” however, as Fishelman emphasizes, “it’s patience, reliability, and showing courtesy.” These qualities have made him a trusted ally for individuals navigating some of the most difficult moments of their lives.

Fishelman’s ability to connect with his clients is matched by his extensive litigation experience. In his decade of practice, he has filed over 500 lawsuits and tried between 200 and 250 cases. Currently, Fishelman leads the personal injury department at Zipin, Amster & Greenberg, LLC, a practice group

he founded in 2022. Managing a team of five paralegals and overseeing approximately 200 cases, he balances the demands of a high-volume practice with his dedication to client care.

He admits that the pure volume of work can be challenging to manage, particularly with constant deadlines and new clients. “Client communication is always a challenge,” he shared, “but picking up the phone and being available helps build trust and ensures that clients feel supported.” Throughout his career, Fishelman has learned invaluable lessons about resilience, balance, and the demands of private practice.

“The best advice I ever received was to not let myself get too high with the wins or too low with the losses. Your career is a marathon, not a sprint,” he reflects. This perspective has helped him navigate the unpredictable terrain of litigation and maintain a steady focus on his goals.

Fishelman’s commitment to work-life balance is a cornerstone of his professional philosophy, and he believes that success in private practice is achievable without sacrificing personal fulfillment—a lesson he wishes he could share with his younger self. “The practice of law will take whatever you are willing to give it. Set personal and professional boundaries and stick with them,” he advises.

Despite the challenges that come with a litigation practice, Fishelman is motivated by the opportunity to make a meaningful impact.

“No one comes to a personal injury lawyer when they’re happy,” he notes. “Clients often arrive injured, scared, and unsure of what to do. Seeing the turnaround from when they

first walk into my office to when their case is resolved is incredibly rewarding.”

Over the years, Fishelman has found that his work with immigrant communities has not only shaped his career but also deepened his empathy and understanding. “I’ve always empathized with immigrants,” he says. “Working heavily with this population for the past 10 years has only strengthened that feeling.”

His passion for elevating minorities in Maryland extends beyond client representation. He shared, “whether it’s providing competent legal representation, being a mentor to young lawyers, or teaching Spanish-speaking students, I find my purpose in helping minorities get a fair shot.“ Fishelman credits much of his work ethic and dedication to his father, Norman Fishelman, who passed away in 2024. A multilingual educator and musician, Norman’s example of perseverance and passion continues to inspire Fishelman in his professional and personal life.

Looking ahead, Fishelman’s goals for the future center on maintaining a fulfilling balance between professional success and personal well-being. “We work to live, not live to work,” he says, a reminder to himself and others that the demands of the legal profession should never overshadow life’s greater joys.

With a career defined by advocacy, learning, and growth, Fishelman serves as an inspiring example of how attorneys can make a difference—both in their clients’ lives and their communities.

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MSBA’s 2025 Professional Excursion Combines Legal Education and Networking in

MSBA’s 2025 Professional Excursion brought attorneys together for a week of legal education, networking, and professional development in Playa del Carmen, Mexico. Held from February 16–21, 2025, the event combined continuing legal education sessions with networking events, and recreation at the Paradisus Playa del Carmen and La Perla Resorts.

LEGAL EDUCATION IN A UNIQUE SETTING A key component of the excursion was its CLE programming, which provided attorneys with the opportunity to earn credits while engaging with timely legal topics.

Presenters led discussions on issues such as the Maryland SAFE Act, which addresses financial exploitation of vulnerable adults, and government contracting, outlining how attorneys can expand their practices in that sector. Other sessions focused on law firm management, representation of Spanish-speaking and undocumented clients, and the role of personality types in conflict resolution.

The CLE sessions encouraged interaction between attorneys from various practice areas, creating an environment for knowledge-sharing beyond the structured programming. The format allowed for deeper discussions

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Feb

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A key component of the excursion was its CLE programming, which provided attorneys with the opportunity to earn credits while engaging with timely legal topics.

on legal trends, challenges in different practice areas, and strategies for navigating an evolving legal landscape.

NETWORKING AND PROFESSIONAL DEVELOPMENT Beyond the CLE sessions, the excursion provided attorneys with opportunities to network in a less formal setting. The event opened with a welcome reception and dinner, where MSBA President Raphael J. Santini addressed attendees and outlined the goals of the excursion. Each morning, attorneys could join group runs and walks, offering a casual setting for conversation before the day’s programming.

A sunset catamaran excursion gave attendees another opportunity to connect outside of structured sessions, while smaller group excursions to Mayan ruins, cenotes, and other cultural sites allowed participants to build relationships while exploring the region.

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Plans for future excursions are already in discussion, and MSBA members can expect similar opportunities to connect, learn, and expand their professional networks in the coming years.

A service project also played a role in the week’s activities, with MSBA members coming together for a community-focused initiative. The excursion concluded with a farewell dinner, where attendees reflected on the professional insights and connections they had gained throughout the week.

BALANCING WORK AND WELLNESS The Paradisus Playa del Carmen and La Perla Resorts provided an ideal location for the event, offering all-inclusive accommodations, a range of dining options, and access to pools, fitness facilities, and the beach. The setting allowed attendees to balance professional development with relaxation, reinforcing the value of work-life balance in the legal profession.

Plans for future excursions are already in discussion, and MSBA members can expect similar opportunities to connect, learn, and expand their professional networks in the coming years.

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FOR YOUR PRACTICE | BUSINESS LAW

What to Know About Maryland's Consumer Data Privacy Act

BY COLLEEN M. ARACRI, ESQ.

THE MARYLAND ONLINE DATA PRIVACY ACT

of 2024 (MODPA) represents a significant step in the state’s approach to consumer data protection. While Maryland’s privacy law aligns with several existing state privacy frameworks, it imposes additional restrictions that warrant close attention from businesses and legal practitioners alike. MODPA would take effect on October 1, 2025, however, it will not “have any effect on or application to any personal data processing activities before April 1, 2026.”

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For Maryland attorneys advising businesses, compliance with MODPA will require proactive steps to align data collection, processing, and protection measures with the new law’s provisions.

Scope and Applicability of MODPA MODPA applies to any entity or person who conducts business in Maryland or provides services or products targeted to Maryland residents and, during the immediately preceding calendar year, controlled or processed the personal data of at least 35,000 Maryland consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction, or controlled or processed the personal data of at least 10,000 Maryland consumers and derives more than 20% of their gross revenue from the sale of personal data.

MODPA’s triggering scenarios are significantly lower than most other state consumer privacy laws. MODPA defines personal data as information that is connected or reasonably connectable to an identified or identifiable individual, excluding de-identified data and publicly available information.

Certain entities, such as state agencies, nonprofit organizations assisting in law enforcement investigations, and institutions regulated by federal laws such as HIPAA and the Gramm-LeachBliley Act, are exempt from MODPA’s requirements. However, businesses outside these exemptions must prepare for compliance to avoid potential penalties.

Key Provisions of MODPA MODPA introduces robust consumer rights, restrictions on data processing, and enhanced compliance obligations.

Maryland residents will have several rights over their personal data, including the ability to access information on whether a business processes their personal data, request corrections to

inaccurate personal data, delete their personal data, and obtain a copy of their personal data in a portable, machine-readable format.

Consumers will also have the right to opt out of targeted advertising, profiling, and the sale of personal data. Businesses must establish mechanisms to process and respond to consumer requests within 45 days, with a possible extension of another 45 days if necessary.

MODPA imposes strict data minimization and purpose limitation requirements. Businesses may only collect, process, and store personal data that is necessary and proportionate to provide a requested product or service. Any additional use of personal data beyond the original purpose requires explicit consumer consent.

These provisions will require businesses to reevaluate their data collection practices and limit unnecessary data storage.

The law introduces heightened protections for sensitive personal data, which includes race, ethnicity, religious beliefs, sexual orientation, gender identity, citizenship status, consumer health data, precise geolocation data within 1,750 feet, and biometric and genetic data. Businesses cannot process sensitive data even with consumer consent unless it is strictly necessary to fulfill a specific consumer request.

MODPA prohibits businesses from selling personal data or using it for targeted advertising for consumers under 18 years old. This provision exceeds the protections under federal laws such as the Children’s Online Privacy Protection Act, which primarily focuses on children under thirteen. Additionally, the law includes a unique restriction on geofencing, prohibiting businesses from using geolocation data to track consumers within 1,750 feet of healthcare facilities related to reproductive, sexual, or mental health.

MODPA incorporates entity-level and data-level exemptions to its regulations. At the entity level, exemptions cover administrative, advisory, regulatory, executive, appointive, legislative, or judicial bodies or instrumentalities of the state of Maryland, nonprofit organizations aiding law enforcement investigations, national securities associations under the Securities Exchange Act of 1934 or registered futures associations under the Commodity Exchange Act, and financial institutions regulated by the Gramm-Leach-Bliley Act. Moreover, MODPA's data-level exemptions align with federal laws like HIPAA, the Common Rule, the Fair Credit Reporting Act, the Drivers Privacy Protection Act, and others.

Businesses must provide clear and accessible privacy notices that include the categories of personal data collected and processed, the purpose of data processing, consumer rights and how to exercise them, the categories of third parties with whom data is shared, whether personal data is used for targeted advertising or profiling, and an easy-to-use opt-out mechanism for data sales and advertising. Additionally, MODPA requires businesses to recognize global opt-out signals, such as the Global Privacy Control, by October 25, 2025.

MODPA will be enforced by the Maryland Attorney General, treating violations as unfair or deceptive trade practices under the Maryland Consumer Protection Act. In cases involving violations that occur up to April 1, 2027, the attorney general can issue a notice allowing a 60 day window for remediation. Failure

to address the issue within this period may lead to enforcement action by the attorney general. Penalties for violations can reach $10,000 per incident and up to $25,000 for repeat offenses.

Compliance Strategies for Businesses With MODPA’s effective date approaching, Maryland attorneys should advise clients to take several steps to ensure compliance.

Businesses should conduct a thorough audit of their data collection and processing practices to determine what personal data they collect, how the data is processed and shared, and whether data processing aligns with the new data minimization and purpose limitation requirements.

With MODPA set to take effect on October 1, 2025, Maryland attorneys must prepare their clients for compliance with this comprehensive privacy law.

Privacy policies should be updated to meet MODPA’s disclosure requirements and provide transparent opt-out mechanisms for consumers. Businesses must also develop internal processes to verify and respond to consumer requests within forty-five days, recognize and honor global opt-out signals, and ensure consumers can easily correct, delete, or obtain their data. Given MODPA’s prohibition on the sale and unnecessary processing of sensitive data, businesses should identify and segregate sensitive data and limit processing strictly to consumer-requested services.

Since MODPA emphasizes data security, businesses should implement technical and administrative safeguards to protect consumer data and establish vendor contracts that require third parties to adhere to Maryland’s privacy standards. Legal teams should educate employees on the requirements of MODPA, particularly those handling consumer data and privacy-related inquiries.

Looking Ahead With MODPA set to take effect on October 1, 2025, Maryland attorneys must prepare their clients for compliance with this comprehensive privacy law. By focusing on data minimization, consumer rights, and enhanced privacy practices, businesses can navigate MODPA’s requirements effectively and mitigate enforcement risks. The evolving privacy landscape requires ongoing legal guidance, ensuring that businesses comply with the law while fostering consumer trust through responsible data practices. For Maryland attorneys, staying ahead of these regulatory changes will be crucial in advising clients on best practices and helping them avoid costly penalties in the years to come.

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FOR YOUR PRACTICE | TECH DEVELOPMENTS

THE LEGAL LANDSCAPE OF PRIVACY:

Why Lawyers Must Keep Up with Change

BY MICHAEL C. MASCHKE, SHARON D. NELSON, ESQ. AND JOHN W. SIMEK

WE ARE NEARING THE END OF another year filled with significant advancements in cybersecurity protections adopted by law firms to combat the constant cyber-attacks they face. Law firms are finally embracing Endpoint Detection and Response (EDR) software, cybersecurity awareness training, and phishing simulations. The reality is that the measurement of cybersecurity protections can never be genuinely quantified.

The primary reason is because the goalpost everyone aims for keeps moving farther and farther away with each new vulnerability or attack method discovered or developed by attackers.

The continually evolving and complex world of cybersecurity shows no signs of slowing down.

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More Governance What else must law firms endure besides constant cyber and phishing attacks? How about further governance regarding data privacy? Law firms got a taste of this in 2016 with the EU’s passing of the General Data Protection Regulation (GDPR), touted as the world's strictest privacy and security law. The GDPR imposes obligations on any organization that targets or collects data related to people in the EU. The California Consumer Privacy Act (CPPA) went into effect in January 2020, providing residents of California with greater control over personal data collected, including the ability to request a business to delete any harvested personal information. This legislation applies to anyone who does business in California that meets certain thresholds. That’s just California’s privacy law. There are now 20 states that have varying degrees of data privacy laws.

As a result of governance, law firms have adopted privacy and data collection policies to meet these requirements, including GDPR policies and popup notifications regarding Cookies and the types of data collected when visitors browse their websites. Failure to abide by and comply with these changing regulations may result in malpractice claims, lawsuits, or fines for non-compliance. That certainly has gotten the attention of many law firms. Suddenly, law firms are taking the long-standing regulations seriously, which have largely been ignored in the past.

Driven by Client Demand It’s not just the cyber insurance carriers; clients have also gotten smarter about data protection. Law firms commonly receive cybersecurity questionnaires from larger corporations or defense contractors, which must be completed before engaging with the law firm. Clients demand to know what protections are in place to keep their data safe and, in some instances, want proof—not just self-attestation. These questions are very similar to those asked by cyber insurance providers.

Some of the cybersecurity measures asked about by clients include: Are 100% of endpoints protected by “next-gen antivirus” and “EDR” software?

Have you had a penetration test and vulnerability assessment performed within the last year, and if so, were all the medium, high, and critical vulnerabilities remediated?

Are your information systems monitored by a Security Information and Event Management (SIEM) solution backed by a 24/7 Security Operations Center?

Are your critical systems backed up to an offsite location protected against ransomware attacks or infections (immutable backups)?

Have your employees attended a cybersecurity awareness training session within the last 12 months?

Is MFA required for access to all firm resources?

These are some very tough questions from clients, but they underscore the importance of data protection and privacy from the client point of view. Law firms that haven’t implemented the requested measures often use the request as a catalyst for positive change to implement the solutions before responding to the questionnaire and are willing to take on the cost to get the client. It’s a win-win.

Risks of Litigation It was only a matter of time before the data breach attorneys showed up to the party. Class action lawsuits have now become a nightmare for law firms who have suffered a data breach. Law firms

Mandated privacy and data protection are here to stay, as are cyberattacks. Law firms must remain proactive in adopting these measures which benefit the firm and its clients. Serious reviews of your cybersecurity and annual security changes mitigate risk and exposure and will keep class action lawsuits at bay. are becoming subjects of class action lawsuits, which often tend to settle relatively quickly without the details being outlined in court. Class action lawsuits, expensive data breach notification requirements, and monetary fines from State Attorney Generals for data privacy violations- what more can be done to drive the point home about the need for rigorous data security protections?

For a long period of time, law firms hesitated to take on class action lawsuits against other law firms which suffered data breaches. Those days are long gone.

Mandated privacy and data protection are here to stay, as are cyberattacks. Law firms must remain proactive in adopting these measures which benefit the firm and its clients.

Serious reviews of your cybersecurity and annual security changes mitigate risk and exposure and will keep class action lawsuits at bay. As an added benefit, you may even get your cyber insurance carrier to lower your premium (or not increase it as much as they usually do) with all the added security measures you’ve implemented. ____________ Michael C. Maschke is the President and Chief Executive Officer of Sensei Enterprises, Inc. Mr. Maschke is an EnCase Certified Examiner (EnCE), a Certified Computer Examiner (CCE #744), an AccessData Certified Examiner (ACE), a Certified Ethical Hacker (CEH), and a Certified Information Systems Security Professional (CISSP). He is a frequent speaker on IT, cybersecurity, and digital forensics, and he has co-authored 14 books published by the American Bar Association. He can be reached at mmaschke@senseient.com.

Sharon D. Nelson is the co-founder of and consultant to Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a coauthor of 18 books published by the ABA. snelson@senseient.com John W. Simek is the co-founder of and consultant to Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), a Certified Ethical Hacker (CEH), and a nationally known digital forensics expert. He is a co-author of 18 books published by the ABA. jsimek@senseient.com MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 37

FOR YOUR PRACTICE | CRIMINAL LAW

FOURTH CIRCUIT COURT OF APPEALS GRANTS EN BANC HEARING IN CHATRIE:

Implications for Geofence Warrants and Fourth Amendment Rights

BY PAMELA LANGHAM, ESQ.

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A RECENT RULING by the U.S. Fourth Circuit Court of Appeals has caught the attention of the legal community.

After losing a challenge to a geofence warrant on July 9, 2024, in the case of United States v. Chatrie, 107 F.4th 319 (4th Cir. 2024), Okello Chatrie filed a petition for rehearing en banc. The court granted the petition on November 1, 2024. See United States v.

Chatrie, 2024 WL 4648102, No. 22-4489 (4th Cir. Nov. 1, 2024). The case has been scheduled for the Fourth Circuit Court of Appeals (Fourth Circuit or Court) next available session. This article summarizes the earlier opinion issued on July 9, 2024.

Facts

Google's "Location History" is an optional setting that tracks a user's location via their mobile devices. Users must enable this feature, which is off by default, by taking several steps, including enabling location sharing and opting in through their Google account. Once activated, Google tracks the user's location using GPS and other inputs, storing this data in a repository called the "Sensorvault." This data can be used for various user benefits and advertising purposes.

Law enforcement can request this data through "geofence warrants," which compel Google to provide location data for all users within a specific geographic area during a particular time. Google's response to these warrants involves a three-step process: providing anonymized data, allowing law enforcement to narrow down the list of users; and, finally, disclosing the identities of the relevant users.

On May 20, 2019, a robbery occurred at a credit union in Virginia. The suspect carried a cell phone during the robbery. After initial investigative efforts failed, including looking at security footage and conducting witness interviews, law enforcement obtained a geofence warrant. The warrant covered a 150-meter radius around the credit union and required Google to provide location data for devices within this area during the robbery. Google identified 19 accounts, and further investigation narrowed it down to three phone accounts that were in the vicinity of the robbery, including Okello Chatrie's (Chatrie) account.

Chatrie was indicted on charges related to the robbery and firearm use. He moved to suppress the evidence obtained through the geofence warrant, arguing it violated the Fourth Amendment. The U.S. District Court in the Eastern District of Virginia denied the motion to suppress, citing the goodfaith exception to the exclusionary rule. Chatrie entered a conditional guilty plea and was sentenced to 141 months' imprisonment. He appealed the decision, leading to the current case.

Fourth Circuit’s Analysis

Chatrie’s appeal focused on arguing that law enforcement’s geofence warrant violated the Fourth Amendment’s restrictions on unreasonable searches and seizures. He also argued that the geofence warrant invaded his reasonable expectation of privacy.

The Fourth Circuit affirmed the district court’s denial of Chatrie’s motion to suppress but for a different reason.

The Fourth Circuit explained that Chatrie did not have a reasonable expectation of privacy for two hours of his location history that he voluntarily shared with Google, and, therefore, law enforcement did not conduct a search.

Law enforcement can request this data through "geofence warrants," which compel Google to provide location data for all users within a specific geographic area during a particular time.

The Court started with a discussion of the Fourth Amendment’s protection against unreasonable searches and seizures. In the U.S. Supreme Court's decision in Katz v. United States, 389 U.S. 347 (1967), the Supreme Court introduced a privacy-based framework, where a search occurs if the government invades an individual's reasonable expectation of privacy. However, the Court mentioned the third-party doctrine, which limits Katz, stating that there is no legitimate expectation of privacy in information voluntarily turned over to third parties.

The Supreme Court has addressed the tension between privacy and technology in several cases, and the Fourth Circuit panel briefly discussed those rulings. In United MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 39

The recent decision by the Fourth Circuit to grant a rehearing en banc in United States v. Chatrie highlights the ongoing complexities of applying Constitutional interpretations to new technologies.

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States v. Knotts, the Supreme Court ruled that short-term tracking of public movements did not constitute a search.

See 460 U.S. 276, 278–280 (1983). In United States v. Jones, 565 U.S. 400 (2012), the Supreme Court found that longterm GPS monitoring did constitute a search due to the physical trespass involved. Finally, in Carpenter v. United States, 585 U.S 296 (2018), the Supreme Court further clarified that accessing at least seven days' worth of historical cell-site location information (CSLI) without a warrant was a search, as it provided a detailed chronicle of a person's movements, revealing intimate details of their life.

patterns invades a reasonable expectation of privacy and requires a warrant.

Next, the Fourth Circuit discussed Leaders of a Beautiful Struggle v. Baltimore Police Department, 2 F.4th 330 (4th Cir. 2021), wherein the Court applied Carpenter to Baltimore's aerial surveillance program, which captured extensive data on individuals' movements. The Court held that prolonged tracking that reveals intimate details through habits and

Additionally, Chatrie voluntarily exposed his location information to Google by opting into Location History.

This setting is optional and requires several affirmative steps to enable. Users are informed about the nature of the service and can control their data by reviewing, editing, or deleting it. Therefore, Chatrie knowingly and voluntarily

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Chatrie argued that the government conducted a search when it obtained his Location History data from Google.

However, the Court disagreed, finding that the third-party doctrine applied. The government only obtained two hours' worth of Chatrie's Location History data, which was insufficient to reveal intimate details of his life. This short-term data was more akin to the public movements in Knotts, which were voluntarily conveyed to anyone who wanted to look.

chose to allow Google to collect and store his location information, taking the risk that it could be conveyed to the government. As a result, the Court ruled that the government did not conduct a search when it obtained this information from Google.

Conclusion

The recent decision by the Fourth Circuit to grant a rehearing en banc in United States v. Chatrie highlights the ongoing complexities of applying constitutional interpretations to new technologies. Moreover, as reported by the MSBA in Fifth Circuit Rules Geofence Warrants Are Unconstitutional, Langham, Pamela, MSBA, September 19, 2024, the Fifth Circuit ruled in U.S v. Smith on August 9, 2024, that a geofence warrant was unconstitutional based upon similar facts. See U.S v. Smith, 110 F.4th 817 (5th Cir. 2024). As we await the resolution of Chatrie and the outcome of the en banc opinion, the MSBA and criminal lawyers will be closely monitoring the Fourth Circuit’s calendar. Finally, the rehearing may still present an opportunity for a U.S. Supreme Court resolution.

The Law Firm of McNamee Hosea, P.A. is pleased to announce the promotion of C. RYAN COHILL, KELLY S. KYLIS and JAMES TUOMEY TO PRINCIPALS OF THE FIRM. RCohill@mhlawyers.com KKylis@mhlawyers.com JTuomey@mhlawyers.com

mhlawyers.com MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 41

FOR YOUR PRACTICE | EMPLOYMENT LAW

U.S. Supreme Court Continues Effort to Balance the Fair Labor Standards Acts

By Removing Fourth Circuit Court of Appeals Heightened Standard of Proof for Exemptions

BY JEFFREY M. SCHWABER, ESQ. AND EDUARDO S. GARCIA, ESQ.

ON JANUARY 15, 2025, the U.S. Supreme Court held in E.M.D. Sales Inc. v. Carrera that a “preponderance-of-the-evidence” standard, as opposed to “clear and convincing evidence,” is the appropriate standard of proof when an employer attempts to assert an exemption under the Fair Labor Standards Act (FLSA).1 This decision eliminates the Fourth Circuit’s heightened standard of proof for FLSA exemption claims and brings it into line with other Circuits. By so doing, it continues the Supreme Court’s recent approach of having a closer balance between the protections afforded to employees and employers.

The FLSA was enacted by Congress in 1938 to enshrine minimum wage and overtime protections for employees.2 At the same time, Congress established certain specifically delineated exemptions to those requirements, including but not limited to the “outside salesman exemption.”3 Shortly after the FLSA was enacted, the Supreme Court—with a New Deal era orientation—cautioned that: “[a] ny exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due

1 2 3 4

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No. 23-217, 2025 WL 96207 (U.S. Jan. 15, 2025).

29 U.S.C. §§ 206 & 207.

29 U.S.C. § 213.

324 U.S. 490, 493 (1945).

regard to the plain meaning of statutory language and the intent of Congress.”4 Since that time, for many years, the “narrowly construed” edict was used as a rationale for imposing a more rigid scrutiny on employers who sought to demonstrate entitlement to exemptions from overtime claims. In the Fourth Circuit, the Court went so far as to apply the heightened “clear and convincing” standard of proof to an employer seeking an exemption, notwithstanding the absence of any explicit statutory justification for doing so.

Ultimately, after briefing and argument, in a 9-0 decision, the Supreme Court reversed, concluding that there was simply no reason to deviate from the default rule on standards of proof and held that “the preponderance-ofthe-evidence” standard governs when an employer attempts to demonstrate that an employee is exempt.”

HISTORY OF FOURTH CIRCUIT’S “CLEAR AND CONVINCING EVIDENCE” REQUIREMENT FOR FLSA EXEMPTIONS

construction principle relies on the flawed premise that the FLSA “pursues” its remedial purpose “at all costs.”6

The “clear and convincing evidence” standard employed by the Fourth Circuit can be traced back to Clark v. J.M. Benson Co., 789 F.2d 282 (4th Cir. 1986). While the Fourth Circuit repeatedly confirmed that the “clear and convincing evidence” standard was the appropriate standard of proof for FLSA exemption assertions, it never substantively addressed the rationale underpinning the determination to deviate from the normal “preponderance-ofthe-evidence” standard used in civil cases.5

The Supreme Court also importantly noted that the “exemptions are as much a part of the FLSA’s purpose as the overtime-pay requirement . . . (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage”).”7 In so doing, the Supreme Court made clear that adding an additional requirement of “narrow construction” would have the effect of tilting the scales in a way not intended by Congress.

SUPREME COURT REJECTS “NARROWLY CONSTRUED” CANNON

EMD SALES INC. V. CARRERA

More recently, the tide has turned toward a more even balance between employees and employers in assessing these claims. In 2018, the Supreme Court struck down the “narrowly construed” cannon in Encino v. Motorcars, 586 U.S. 79 (2018). In that decision, the Supreme Court made clear that adding a requirement of “narrow construction” to a statute such as FLSA can have the effect of eviscerating the guardrails afforded by the delineated statutory exemptions.

As the Court explained in reaching its conclusion: The Ninth Circuit also invokes the principle that exemptions to the FLSA should be construed narrowly. . . . We reject this principle as a useful guidepost in interpreting the FLSA. Because the FLSA gives no “textual indication” that its exemptions should be construed narrowly, “there is no reason to give [them] anything other than a fair (rather than narrow) interpretation.” … Those exemptions are as much part of the FLSA’s purpose as the overtime pay requirement. . . . The narrow-

EMD is a Maryland international/Hispanic food distributor that employs over 150 people. It distributes thousands of products to independent and chain stores across the Washington metropolitan area. In 2017 a lawsuit was filed by three employees who argued they were denied overtime wages. EMD asserted that the three employees were exempt as “outside salespersons” under the FLSA. The U.S. District Court for the District of Maryland ruled in favor of the employees, repeatedly referencing the application of the heightened “clear and convincing evidence” standard of proof mandated in the Fourth Circuit for employers seeking to establish their right to a recognized exemption under FLSA. The Fourth Circuit reviewed the matter on appeal and indicated that while it was constrained by its own precedent to affirm the decision below, “[p]erhaps this court will want to revisit the appropriate evidentiary standard for FLSA exemptions in light of the Supreme Court’s reasoning in Encino Motorcars and what can be extrapolated from it. But that is a choice that ‘belongs to the en banc Court rather than this panel.’”8

5

See Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir. 1993) (emphasis supplied); Desmond v. PNGI Charles Town Gaming, LLC, 564 F.3d 688, 691 (4th Cir. 2009). Morrison v. Cty. of Fairfax, 826 F.3d 758, 765 (4th Cir. 2016).

6 584 U.S. 79, 88-89 (2018) (citations omitted).

7 Id. at 89.

8 75 F.4th 345, 353 (4th Cir. 2023).

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. . . to strike the critical balance between protecting workers and maintaining a legal environment where businesses can thrive.

After en banc review was denied, certiorari was granted by the United States Supreme Court. In amicus briefing, the business community through its advocacy groups made clear that the Fourth Circuit’s application of a heightened standard of proof would have adverse consequences to employers in Maryland, Virginia, North Carolina, South Carolina and West Virginia. In the Amici Curiae brief filed by the Chamber of Commerce of the United States of America, National Federation of Independent Small Business Legal Center, Inc., National Retail Federation, and Restaurant Law Center in support of E.M.D. Sales, Inc. stated: “[a] number of decisions within the Fourth Circuit illustrate that employers, from small businesses to social services organizations, face skewed outcomes from a heightened burden of proof.” Ultimately, after briefing and argument, in a 9-0 decision, the Supreme Court reversed, concluding that there was simply no reason to deviate from the default rule on standards of proof and held that “the preponderance-ofthe-evidence” standard governs when an employer attempts to demonstrate that an employee is exempt.”

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IMPACT ON BUSINESS COMMUNITIES The E.M.D. Sales Inc. decision removed the Fourth Circuit as an outlier with regard to FLSA jurisprudence and brought it in line with the other Circuits, thereby finally establishing a uniform and articulated standard of proof for FLSA litigation. It ensures that the FLSA remains a tool for fairness and protection of employee rights without imposing an undue burden on businesses, particularly small businesses, thus enabling them to make decisions— including salary decisions—based on a knowledge of the availability of the statutorily provided exemptions. E.M.D. Sales Inc., especially following on the heels of Encino Motorcars, LLC, illustrates the Supreme Court’s recent efforts to remove a judicial thumb on the scales of congressional intent with regard to FLSA and to count on the express wording of the statute—including its delineated exemptions—to strike the critical balance between protecting workers and maintaining a legal environment where businesses can thrive.

____________ Jeff Schwaber and Eduardo Garcia represented EMD Sales Inc. at the Fourth Circuit and at the U.S. Supreme Court. They are leaders in Stein Sperling’s Commercial Litigation department, and both handle a variety of labor and employment litigation as part of their work.

FOR YOUR PRACTICE | FAMILY LAW

Mental Illness and the Capacity to Parent Under Maryland Law

BY NANCY B. GRIMM, ESQ. AND BRITTANY NWADIKE

Parents involved in divorce or custody disputes often face emotional stress, which can affect their ability to parent and impact their children’s behavior and stability. While many behaviors are controlled, there are other conditions that may significantly interfere with safe and healthy parenting.

Family courts are seeing an increase in litigants with mental health disorders,1 making it important for judges, attorneys, and evaluators to understand the effects of mental illness on both parents and children. In Maryland, a parent’s mental health is a key factor in determining parental fitness and the best interests of the child.

Underserved communities, including people of color and those in poverty, face disproportionate challenges in family courts, such as access barriers, racial bias, and difficulties with selfrepresentation. These issues are worsened when combined with mental health concerns. As the legal field becomes more aware of mental health issues, family courts are becoming more sensitive to their impact on parenting.

Consideration and Impact of Mental Health in Parental Fitness In Maryland, if a party makes a mental health claim and the other party in the case disputes the claim, the condition of the party is considered to be “in controversy.”2 This can occur in child custody cases due to a claim that mental health issues make 1

Robin M. Deutsch & Jeremy Clyman, Impact of Mental Illness on Parenting Capacity in a Child Custody Matter, 54 Family Court Review 29–38 (2016).

2 Circuit Court discovery - mental or physical examinations of persons, Peopleslaw, (Oct. 29, 2024), https://www.peoples-law.org/maryland-circuit-court-discovery-4-other-methods.

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them unfit to have custody or visitation rights.3 When a party’s mental condition is in controversy, the court can order a mental or physical examination to determine the party’s condition after a motion has been filed by a party.4 Maryland courts do not require mental illness to be a factor in determining parental fitness. The court in In re Yve S.5, emphasized that having a mental or emotional problem does not justify removing children from a natural parent who is competent to care for them.6 Similarly, the court in In re Adoption/ Guardianship of J.T.,7 held that mental illness is not a reason to terminate parental

Studies have demonstrated the negative impact of unnecessary and overly broad guardianship. rights, especially when the parent’s efforts to rehabilitate are beginning to bear some fruit.8 Federal law does not consider mental disability alone as sufficient grounds for terminating parental rights. The

3 4

courts must take a holistic view of the circumstances, considering whether mental disability has a detrimental impact on the child. For instance, in In re Adoption/Guardianship of Jayden G.,9 the Maryland Court of Appeals highlighted the importance of considering the best interests of the child, and upheld the termination of the mother’s parental rights due to her failure to address mental health needs and maintain stable employment or housing.10 Factors Considered in Custody Decisions Studies estimate that 12–45 percent of adults that seek psychiatric services are parents of minor children.11 Their children are at a higher risk for mental health issues, poor physical health, developmental disabilities, poverty, and adverse childhood experiences, including social, emotional and behavioral problems.12 An inconsistent family environment increases these risks 13 which may include poverty, marital difficulties, poor communication, substance abuse, hostile behavior, and single parent and low income households, and households with multiple risk factors.14 The impact of parental mental illness and substance abuse on children varies and is unpredictable, with not all children being negatively affected. The effect depends on how the condition influences parenting behaviors and family relationships.15 Courts evaluate multiple factors: severity and consistency of harmful behavior, the potential for worsening, the parent’s treatment compliance and effectiveness, and the child’s understanding of the

Id. Id.

5

In re Yve S., 373 Md. 551 (2003) 6 B. O. v. S. O., 252 Md. App. 486; In re Ashley S., 431 Md. 678; In re Barry E., 107 Md. App. 206.

7 In re Adoption/Guardianship of J.T., Nos. 2811, 3098, 2019 Md. App. LEXIS 502 (Spec. App. June 21, 2019).

8 In re R.W., 2022 Md. App. LEXIS 753; In re E.B., 2024 Md. App. LEXIS 321.

9 In re Adoption/Guardianship of Jayden G., 433 Md. 50 (2013).

10 Wilson v. N.J. Div. of Child Prot. & Permanency, 2019 U.S. Dist. LEXIS 144839.

11 Maryland Legal Aid, Child advocacy: Parenting with Mental Illness Maryland Family Law (2024).

12 Id.

13 Parenting with a mental health condition, Mental Health America (2024).

14 Id. 15 Parenting with a mental health condition, Mental Health America (2024).

16 Id. 17 In re Adoption/Guardianship No. 10941, 335 Md. 99 (1994).

18 In re H.I., 2019 Md. App. LEXIS 703.

19 In re Adoption/Guardianship No. 94339058/CAD, 120 Md. App. 88; In re Adoption/Guardianship No. T98314013, 133 Md. App. 401.

20 Parenting with a mental health condition, Mental Health America (2024).

21 In re Adoption/Guardianship of Jayden G., 433 Md. 50; In re Adoption/Guardianship of C.E., 464 Md. 26.

22 In re G.N., 2021 Md. App. LEXIS 753; In re Adoption/Guardianship of C.E., 464 Md. 26; In re Adoption/Guardianship of O.C., 2018 Md. App. LEXIS 901; In re Adoption/Guardianship of A.C., 2018 Md. App. LEXIS 168.

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condition.16 In assessing parenting capacity, courts also consider the parent’s ability to provide emotional support and maintain strong bonds, ensure safe physical care and supervision and remain engaged in the child’s life while supporting their developmental interests and growth.

Mental health issues must significantly affect a parent’s ability to care for their child to affect their rights. In In re Adoption/ Guardianship No. 10941,17 the court found a parent unfit due to persistent mental disorders that would not improve despite treatment.18. The court must consider all relevant factors together, without prioritizing one over others.19 Parents with serious mental illness face a higher risk of losing custody, especially if the illness is severe and there is no competent adult in the home.20 Other risks include family stress, economic hardship, and negative attitudes from mental health providers or social workers.

Factors for Termination of Parental Rights When considering parental rights termination, courts evaluate factors such as the child’s health and safety, the parent’s efforts to maintain contact and contribute to the child’s care, and any aggravating circumstances such as abuse or neglect.21 Clear and convincing evidence is needed to prove a parent is unfit or that exceptional circumstances exist that would make the continuation of the parental relationship detrimental to the child’s best interests.22 Untreated mental illness may only lead to

The need for effective representation of people with disabilities, including those who may be experiencing diminished capacity, is great.

termination in extreme cases when it poses a serious threat to the child’s safety.

Legal Standards and Rules Federal law recognizes the important role of parents in their children’s well-being, presuming they act in the child’s best interest unless there’s evidence of neglect or abuse.23 While a mental disability alone cannot justify terminating parental rights, courts may consider it when it detrimentally affects the child.24 and may consider a parent’s intellectual limitations only if they harm the child.25 The state must prove a parent is unfit by clear and convincing evidence terminating parental rights.26 As established in Troxel v.

Granville,27 the state may not grant visitation rights over the objection of a parent if it interferes with the parent’s fundamental liberty interest in the rearing of the child.28 Maryland’s Family Law Article § 5-323 and §5-1402.29 governs parental rights termination, requiring courts to weigh child health and safety as the primary consideration. While courts may consider a parent’s emotional or mental illness, such conditions must demonstrably impact the ability to provide care.30 Mental illness alone cannot justify termination if the parent is otherwise competent.31 § 9-107, guides custody decisions involving parental disability, including mental health issues, ensuring fair treatment based on evidence rather than presumed limitations.32

Statutory provisions like § 5-70133 and § 3-80134 define neglect as failure to provide proper care to the child, influenced by a parent’s mental health. Additionally, § 5-323 details conditions for terminating parental rights, including chronic neglect and mental health issues that impair a parent’s ability to care for their child.35 Through examining federal and state legal standards key legal principles emerge: the child’s best interest is paramount in custody decisions. Maryland law presumes that a child’s best interest lies with the natural parent, despite mental health issues.

Rehabilitation and Supportive Parenting Services Parents with mental health struggles can offer safe, loving care with proper support. Preventive interventions addressing risk factors and boosting protective factors help children develop resilience and thrive.36 These strategies improve family stability, strengthen parenting, and limit exposure to negative aspects of the parent’s illness.37 Courts must evaluate if “supportive parenting services” can help parents with mental health issues meet their responsibilities. In In re Adoption/Guardianship of J.T,38 the court emphasized the parent’s insight into her illness, treatment commitment, and prioritization of her child in determining fitness.39 While parents are presumed to act in their children’s best interests, the state can intervene if the child’s well-being is

23 Troxel v. Granville, 530 U.S. 57 (2000).

24 Id. 25 Wilson v. N.J. Div. of Child Prot. & Permanency, 2019 U.S. Dist. LEXIS 144839.

26 Wilkinson by & Through Wilkinson v. Balsam, 885 F. Supp. 651.

27 Troxel v. Granville, 530 U.S. 57 (2000).

28 Wilkinson by & Through Wilkinson v. Balsam, 885 F. Supp. 651; Ervin v. Davis, 2016 U.S. Dist. LEXIS 77383.

29 In re Adoption/Guardianship No. A91-71A, 334 Md. 538; In re Harry H., 103 Md. App. 67.

30 Burak v. Burak, 455 Md. 564; Clanton v. Sabine-Prosser, 2019 Md. App. LEXIS 802.

31 In re Ashley S., 431 Md. 678; In re Shirley B., 419 Md. 1.

32 Id. 33 § 5-701. Definitions. [Effective October 1, 2024].

34 § 3-801. Definitions. [Effective October 1, 2024].

35 § 5-323. Grant of guardianship — Nonconsensual.

36 Id. 37 Id. 38 In re Adoption/Guardianship of J.T., Nos. 2811, 3098, 2019 Md. App. LEXIS 502 (Spec. App. June 21, 2019).

39 In re R.W., 2022 Md. App. LEXIS 753.

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at risk.40 If a child faces imminent danger, the state can protect them, even challenging the parent’s decisions.41 Recommendations To help parents with mental illness retain custody, it’s important to advocate for timely mental health assessments and treatment for both parents and children. Using custody evaluators and courtappointed attorneys for the child protects the child’s rights. Present all evidence of parental capability and progress in managing mental health and propose supportive services when needed. Consider the confidentiality of mental health records and advise clients accordingly.

Stay updated on changes or new interpretations of Family Law Article §9-107 and related case law.42 Conclusions In Maryland, a parent’s mental health is a key factor in determining parental fitness and potential termination of parental rights. Courts assess whether mental health issues impact the ability to provide a safe environment for the child, but mental illness alone isn’t enough for termination unless it demonstrably impairs the parent’s ability to care for the child.43. The child’s safety and potential for parental rehabilitation are prioritized.44 The state must prove by clear evidence that a parent is unfit before terminating rights, ensuring due process.

.

40 Ollar v. District of Columbia, 2022 U.S. Dist. LEXIS 162333

41 Id. 42 Md. Code Ann., Fam. Law § 9-107.

43 In re Ashley S., 431 Md. 678.

44 In re Ashley S., 431 Md. 678; In re Adoption/Guardianship of C.E., 464 Md. 26.

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Nancy Grimm, Esq., Family Law Director for Maryland Volunteer Lawyers Service (MVLS), is the first family law attorney for MVLS. Ms. Grimm, who has 20 over years of experience practicing family law, oversees the MVLS’ Judicare Program, which matches attorneys with clients facing contested custody and divorce cases. She also supports and mentors MVLS’ volunteer attorneys and advises applicants awaiting legal counsel. During her career she was an active member of MVLS’ Judicare panel representing underserved clients for the organization.

Brittany Nwadike is a Juris Doctor candidate at the University of Maryland Francis King Carey School of Law, class of 2026. She serves as a Staff Editor for the Journal of Health Care Law and Policy, holds an executive board position in the Student Health Law Organization, and is a member of the Thurgood Marshall Trial Team. Her academic achievements are recognized through the Maryland Law Scholar Award.

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MEMBER SPOTLIGHT | MEMBER PROFILE

SERVING PURPOSE DRIVEN BUSINESSES

NATASHA NAZARETH Nazareth Bonifacino Law

NATASHA NAZARETH’S legal career began at Legal Aid advocating for children’s rights to justice, healthcare, education, and safety, followed by roles at public universities and independent schools.

These experiences led her to co-found Nazareth Bonifacino Law in 2022 with Ginny Bonifacino, focusing on serving purpose-driven businesses and underserved entrepreneurs: Black, indigenous and people of color, immigrants, women, and service-disabled veteran business owners.

In 2023, her firm became Maryland’s first Certified B Corp law firm, committed to the triple bottom line of people, planet, and profit.

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I hope to leave my mark by practicing values-based law joyfully and prioritizing meaningful work that helps people transform their lives, supports my community, and drives lasting positive social and environmental change.

Currently, Nazareth provides general counsel services in business, employment, and education law for purpose-driven organizations, from small businesses to educational institutions and nonprofits.

Her practice covers the full business life cycle, including transactions, employment issues, contracts, risk management, regulatory compliance, and governance. Nazareth also serves as a senior mediator for North Carolina state government and universities, working with clients across sectors.

Describe a memorable MSBA event or product that has had an impact on you personally or professionally.

The MSBA has provided me with numerous opportunities to learn and grow professionally. I value each of these experiences as steps that helped shape my career. I’m a frequent user of the free CLE that is included with the membership. I often listen while I’m driving or folding laundry. One recent deeply inspiring event was the Solo and Small Firm Symposium. I came away with a boost of entrepreneurial energy and several actionable “how-tos” from other successful small firms. The connection with other firms like Nazareth Bonifacino Law has continued beyond the symposium, with attorneys reaching out to follow up on the roundtable discussion that Bethesda estate planner Meredith Hill and I co-led on organizing and operating a modern law firm.

How do you spend your free time?

Maintaining balance and well-being is important to me. When I’m not practicing law, I cherish spending time with my children and our dogs. I love to be active and enjoy the outdoors, yoga, and exploring new places and cuisines through travel. We have a family joke about being adventurous eaters: we'll eat just about anything once, and often I recreate the dishes at home. I also spend time with the youth-led youth group at my Quaker meeting. They design their own religious study, programming, and service projects. As a Friendly Adult Mentor, I coach and support them, holding space for them to discover what’s in their spiritual toolkits and how they would like to live their values in their communities.

What causes are you passionate about?

I am passionate about advancing a more just and equitable world for my children. I hope to leave my mark by practicing values-based law joyfully and prioritizing meaningful work that helps people transform their lives, supports my community, and drives lasting positive social and environmental change. This is why our firm focuses on supporting the 'missing middle' of entrepreneurs—those underserved business owners who often lack access to critical resources in the first five years, a make-or-break period for most small businesses.

I am also passionate about giving back to the communities that have supported me. Within the legal community, I have found deep fulfillment in my roles with the MSBA, my local bar association, and various specialty bar associations that I have been fortunate to be part of over the last three decades.

Do you find time to relax and unwind?

Yoga! My daily practice ranges from a few quiet minutes to my favorite class, which is advanced yogi playtime. It’s a great way not to take myself too seriously and to find ease in my body despite so much time in front of the computer.

I understand you recently won a prestigious Reisman Award. That is exciting! Explain how this award will give you and your firm national exposure.

It was exciting, thank you! Winning a Reisman Award this year was an incredible honor for Ginny and me, and we’re both proud to be recognized by Clio, the global cloud-based legal technology company.

The Reisman Awards celebrate excellence in legal practice, innovation, and client service, and being selected as a recipient for excellence in client service underscores the meaningful work that we’re doing at Nazareth Bonifacino Law. This award highlights our commitment to providing high-quality client care and legal services to purpose-driven businesses and underserved entrepreneurs. Winning the award has already connected us with new clients, partners, and like-minded professionals who are driving forward modern ways of practicing law that are both tech-savvy and client-centered. As the firm continues to grow, the recognition by Clio will continue to reinforce our position as leaders in purpose-driven legal practice, extending our reach to a broader audience and building stronger relationships within the legal and business communities here in the mid-Atlantic and beyond.

I understand you also won an ABA Solo and Small Firm Lifetime Achievement Award. How does it feel to be honored by the ABA? Receiving the Solo and Small Firm Lifetime Achievement Award from the ABA in May 2024 has been a career highlight—I am honored and humbled to have been selected for the award, which pays tribute to the lifetime accomplishments of a solo or small firm practitioner who is considered by their peers for consistently demonstrating excellence and distinction in their law practice field. I am truly grateful to my peers who identified me as one who epitomizes the values and standards of the legal profession. The best part of the award process was making phone calls to thank those who have been particularly impactful in shaping me as a lawyer.

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FOR YOUR PRACTICE | LITIGATION

Understanding the 2024 Amendments to the Federal Rules of Evidence

BY PAMELA LANGHAM, ESQ.

These amendments reflect ongoing efforts to refine the procedural framework that addresses emerging challenges in trial practice and responds to recent judicial interpretations.

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The Federal Rules of Evidence continue to evolve with the 2024 amendments which introduce nuanced changes that require careful consideration by lawyers. Building upon the foundational discussions of the 2023 amendments, this article examines the critical modifications to Rules 613, 801, 804, and 1006, as well as, the introduction of the new Rule 107. These amendments reflect ongoing efforts to refine the procedural framework that addresses emerging challenges in trial practice and responds to recent judicial interpretations. This article will outline the updated evidentiary rules and offer key strategies for lawyers to apply these amendments to their client’s advantage.

Rule 613 This rule addresses the handling of a witness’s prior statements during questioning. It ensures that a witness has a fair chance to address any inconsistencies in their statements, to maintain the integrity of the examination process. The amendment now states “a witness’s prior inconsistent statement may not be admitted until after the witness is given an opportunity to explain or deny the statement,” and “an adverse party is given the opportunity to examine the witness about it.” (emphasis added) The amendment also gives the court the discretion to forego this requirement.

KEY TIPS

Before the amendment, a party opponent may have impeached the witness with an inconsistent

statement before allowing the witness an opportunity to explain it. If opposing counsel attempts to impeach a witness before giving the witness an opportunity to explain it, an objection should be raised citing the new amendment. If a lawyer wants to impeach a witness with a prior inconsistent statement, remember to first allow the witness to explain it.

Rule 801 This rule defines hearsay. 801(d) defines statements that are not hearsay. The amendment adds a new paragraph to 801(d)(2): “If a party’s claim or potential liability is directly derived from a declarant or the declarant’s principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party.” Essentially, the amendment provides that statements are admissible against a declarant’s successor-in-interest. Types of cases that usually invoke this rule include assignor/assignee, and decedent/executor.

KEY TIPS

During the discovery process propound interrogatories or ask questions during depositions to determine if a predecessor made any statements regarding the issues in your case. Admissions by a party are not hearsay.

Likewise, admissions by a predecessor in interest is also not hearsay.

Rule 804 This rule deals with hearsay exceptions when the declarant is unavailable as a witness. The amendment addresses 804(b)(3) regarding statements against interest. The amendment provides that “if offered in a criminal case . . . is supported by corroborating circumstances that clearly indicate its trustworthiness after considering the totality of the circumstances under which it was made and any evidence that supports or undermines it.” In other words, the proponent of the evidence must produce corroborating evidence demonstrating the trustworthiness of the statement.

KEY TIPS

If you are trying to admit a statement against interest in a criminal case, first establish its trustworthiness with corroborating evidence. If you are opposing a statement against interest in a criminal case, object if your opponent has not first provided corroborating evidence of its trustworthiness.

Produce evidence that undermines the statement, if you can.

Rule 1006 This rule addresses the introduction of summaries, charts, or calculations to present the content of voluminous data or documents.

Three separate sections, (a), (b), and (c) were added with the amendment. Section (a) provides that the voluminous data or documents are not required to be admitted into evidence before a summary, chart or calculation is presented in court. However, the proponent must provide the original data or summaries to

their opponent before the introduction of the summaries, charts or calculations. In addition, the court may require the proponent of the summaries to produce the original data in court. See Rule 1006(b).

Section (c) provides that summaries, charts or calculations that are presented as illustrative aids are not covered by this rule, but will now be governed by new Rule 107.

KEY TIPS

A summary, chart, or calculation may now be offered to prove the admissible evidence found within extensive data or documents, without first admitting those data or documents into evidence. Summaries, charts, and calculations under this rule are evidence and should be entered as exhibits in the record. Illustrative aids in the form of summaries, charts, and calculations that merely help the trier of fact are not evidence and are now governed by the new Rule 107.

New Rule 107 This new rule governs the use of illustrative aids not introduced into evidence. Illustrative aids are allowed under this rule if they assist the trier of fact in understanding the evidence or an argument so long as its use is not substantially outweighed by the danger of, among other things, unfair prejudice. Illustrative aids are not admitted into evidence. Examples include PowerPoints, video depictions, computer simulations, etc.

The amendments to Rules 618, 801, 804, and 1006, along with new Rule 107, introduce nuanced modifications that could materially impact case preparation, witness examination, and documentary evidence presentation.

KEY TIPS

The use of the illustrative aid must outweigh any potential unfair prejudice, confusion of the issues, etc. The illustrative aid is not provided to the jury for deliberations unless the parties consent, or the court allows for good cause. The illustrative aid should be added to the record, but not as an evidentiary exhibit.

CONCLUSION

Amendments to the Federal Rules of Evidence effective December 1, 2024, represent changes to the evidentiary standards that lawyers must learn and integrate into their litigation strategies. The amendments to Rules 618, 801, 804, and 1006, along with new Rule 107, introduce nuanced modifications that could materially impact case preparation, witness examination, and documentary evidence presentation. Lawyers should review these changes, and adjust their practice accordingly.

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FOR YOUR PRACTICE | ENVIRONMENTAL LAW

Maryland Joins the Legal Battle Against "Forever Chemicals"

BY COLLEEN M. ARACRI, ESQ.

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IN DECEMBER 2024, Maryland Attorney General Anthony G. Brown filed a lawsuit against W.L. Gore & Associates, Inc., alleging that the company’s use of per- and polyfluoroalkyl substances (PFAS) in its manufacturing processes has resulted in environmental contamination. Often referred to as “forever chemicals,” PFAS are synthetic compounds known for their durability and resistance to degradation, but they are also linked to environmental and health concerns.

This legal action is part of a growing wave of litigation targeting PFAS manufacturers and users across the United States, as governments and regulatory agencies seek to address the long-term impact of these substances on public health and natural resources.

The Role and Impact of PFAS PFAS are widely used synthetic compounds prized for their water- and grease-resistant properties. They are found in products ranging from textiles to medical devices. However, their chemical structure makes them resistant to natural degradation, resulting in long-lasting environmental persistence. Scientific studies link exposure to PFAS to a range of health effects, including increased cancer risks, developmental issues, and immune system impacts.1 The EPA has responded to growing concerns by establishing stringent standards for PFAS in drinking water. In April 2024, the agency set the maximum contaminant level for PFOA at 4 ppt and established similar limits for other PFAS compounds.

These regulatory efforts are part of broader federal and state initiatives to address the widespread presence of PFAS in the environment.2 Allegations Against W.L. Gore & Associates Maryland’s lawsuit contends that W.L. Gore released PFAS into the environment through its manufacturing facilities in Elkton, Maryland, over several decades.3 The state alleges that these releases, which included discharges into groundwater, surface water, and soil, caused contamination in nearby communities. Testing conducted in the area reportedly found PFOA, a particularly toxic form of PFAS, at levels significantly above the Environmental Protection Agency’s (EPA) maximum contaminant level of 4 parts per trillion (ppt).

Maryland asserts that such contamination poses risks to both natural resources and public health.4

1 2 3 4 5 6 7 8 9

The state asserts it is pursuing this lawsuit as part of its responsibility to protect natural resources under state law.

In doing so, it claims that PFAS contamination has damaged its waters, soil, and air, all of which are held in trust for the public. The complaint seeks to recover costs for investigating, remediating, and restoring the affected areas, while also seeking injunctive relief and penalties against Gore.5 W.L. Gore’s Official Response In response to the lawsuit, W.L. Gore & Associates denied the allegations and expressed surprise at the legal action, citing its ongoing engagement with Maryland regulators.6 In a December 18, 2024, statement, the company referenced its recent submission of a detailed groundwater testing report for its Cherry Hill facility, which it says reflects nearly two years of investigation.7 Gore has stated that it has employed the latest science and technology to assess environmental impacts and to collaborate with regulators in addressing PFAS concerns.8 The company further described its efforts to adopt advanced practices and technologies as regulations around PFAS have evolved. It emphasized its commitment to responsible operations, environmental stewardship, and its longstanding presence as a community partner in Cecil County, Maryland.

Gore maintains that it continues to take actions in response to new developments in PFAS science.9 PFAS Litigation Trends The lawsuit is part of a larger trend of PFAS-related litigation across the United States. States like Texas, Connecticut, and Oregon have also filed claims against PFAS manufacturers, often citing violations of environmental and public health laws. At the federal level, the EPA has classified certain PFAS as hazardous substances, enabling states to pursue cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act. As the case proceeds, it will contribute to the broader discussion about the management of PFAS contamination and the roles of corporations, regulators, and governments. The outcome of the lawsuit may influence future litigation and regulatory approaches to PFAS and similar environmental issues.

Id., https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas. https://www.epa.gov/system/files/documents/2024-04/pfas-npdwr_qa_general_4.9.24v1.pdf. https://www.marylandattorneygeneral.gov/News%20Documents/121824_Gore_%20Complaint.pdf.

Id. Id. https://goreforwardstg.wpenginepowered.com/wp-content/uploads/2025/01/MD-AG-lawsuit-response-Dec-18-2024.pdf Id. Id. Id.

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ARTIFICIAL INTELLIGENCE UPDATES

The emergence of generative artificial intelligence (AI) has created a moment of reflection for the legal profession. As AI tools become increasingly sophisticated, law firms find themselves at a critical crossroads: how should they approach the integration of this technology?

The debate surrounding AI is not simply about whether to adopt a new tool, but about reimagining legal practice in the digital age. On one side, proponents argue for careful, structured policies that protect professional integrity. Conversely, advocates push for a more open, adaptive approach that embraces technological potential.

The Case for Implementing an AI Policy The arguments in favor of developing an AI policy are compelling and multifaceted. First and foremost is the critical issue of client confidentiality. Law firms handle sensitive information protected by attorney-client privilege, and AI tools that retain and potentially share input data represent a significant risk to this trust.

GENERATIVE AI IN LAW FIRMS: Balancing Innovation and Responsibility

BY PAMELA LANGHAM, ESQ.

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Unauthorized data transmission or potential AI model training using client information could breach confidentiality. A well-crafted AI policy can establish clear protocols for what information can be input in AI systems, how that information is handled, and what safeguards are in place to prevent unauthorized data sharing.

The legal profession is built on principles of professional responsibility, accuracy, and intellectual integrity. AI can produce hallucinations or other inaccuracies that may appear credible but are entirely fictional. Without proper guidelines, lawyers arguably might inadvertently introduce such hallucinations into legal documents, research, or client communications.

A policy can provide clear guidance on AI tool usage, including mandates for human verification, limitations on AI-generated content, and protocols for disclosures when AI tools have been employed in any professional capacity. This approach ensures transparency and maintains the profession’s high ethical standards.

The debate surrounding AI is not simply about whether to adopt a new tool, but about reimagining legal practice in the digital age.

Professional liability presents another crucial argument for an AI policy. As AI becomes more integrated into legal workflows, law firms must proactively manage potential risks. A comprehensive policy can help establish clear boundaries, create accountability mechanisms, and potentially mitigate professional liability in cases where AI-generated content might be challenged.

bodies are well-equipped to develop broader, more flexible guidelines that can adapt to technological change without creating unnecessarily rigid firm-level policies, e.g. ABA Formal Opinion 512; The ABA's Stance on AI: Formal Opinion 512, Langham, Pamela, MSBA, August 7, 2024; Navigating Ethical Concerns for Lawyers Using AI, Langham, Pamela, MSBA, May 24, 2024.

Finally, without clear guidelines, lawyers might over-rely on AI. The absence of a policy may leave the firm vulnerable to unpredictable legal and ethical challenges. Firms without established guidelines might find themselves retroactively scrambling to comply with emerging standards.

The economic argument against formal AI policies is very compelling.

Firms that embrace AI without restrictive guidelines can potentially reduce research and documentation preparation costs, increase efficiency in routine legal tasks, provide more competitive pricing to clients, and allocate human resources to higher-value strategic works.

In addition, many insurance companies and corporations are considering, if not already, requiring their outside counsel to implement AI in some form to take advantage of the potential reduction in attorney time - translated into a reduction in attorneys fees.

The Counterargument: No Formal AI Policy Is Needed However, there are equally compelling arguments against implementing an AI policy. Overly restrictive guidelines risk stifling innovative-thinking lawyers who can transform legal practice. The legal profession has been slow to embrace technological change, often to its own detriment.

When Lexis and Westlaw were first introduced, many seasoned attorneys, accustomed to traditional methods of sifting through physical case reporters and legal texts in a library, viewed the digital shift with skepticism and were concerned about the reliability and comprehensiveness of online databases. The legal profession suffered again with the initial resistance to electronic filing and hesitancy around cloud-based case management systems. A rigid AI policy continues this problematic trend, potentially leaving forward-thinking firms and lawyers at a competitive disadvantage.

Implementing AI policies at this stage of technological development could create bureaucratic barriers that slow technological adaption and adoption, and limit competitive advantage. The most innovative firms are those willing and intelligently integrating new technologies, not to control them through rigid restrictions.

Traditional legal practice has always valued individual professional judgment. AI should be viewed as an extension of a lawyer’s analytical toolkit, not a threat to be controlled through top-down policies.

Experienced attorneys are best positioned to determine how and when AI tools can enhance their work.

There are existing robust professional and ethical rules in place that govern all lawyers concerning the use of AI. Professional conduct rules, existing confidentiality standards, and ethical guidelines provide sufficient protection without the need for additional, AI-specific restrictions. The existing Maryland Attorneys’ Rules of Professional Conduct and the ethical guidelines and ethical opinions are well-equipped to guide attorneys in their use of AI legal tools. And, professional

A Balanced Approach Possibly, the most effective strategy likely lies in a nuanced, flexible approach that combines structured guidance with professional autonomy. An ideal informal policy should provide clear guidelines on permissible AI tool usage, establish protocols for verifying AI-generated content, implement strict confidentiality protection mechanisms, develop training programs to enhance AI literacy and conduct regular policy reviews to adapt to technological changes.

Conclusion: Embracing Intelligent Integration The question is no longer whether AI will impact legal practice, but how and when law firms choose to integrate and manage the technology.

A well-written AI policy is not about restricting the technology, but about responsible innovation. It represents a firm’s commitment to maintaining the highest professional standards while embracing technological advancement.

But maybe the most effective approach to using AI in legal practice is not restriction but intelligent integration and implementation.

By adhering to the already existing ethical frameworks applicable to attorneys, trusting in professional judgment, investing in skill development, and maintaining an open, adaptive stance, law firms can harness the potential of AI legal tools.

AI should not be viewed as a threat to be managed, nor is it a silver bullet to be embraced without careful consideration. Instead, it presents a powerful tool that when approached with thoughtful professionalism, can enhance legal practice in many ways. Law firms should view AI not as a replacement for human expertise, but as a complement to human judgment.

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FOR YOUR PRACTICE | LITIGATION

The Supreme Court of Maryland Deems the Child Victims Act of 2023 Constitutional

BY JASON D. MEDINGER, ESQ.

The Child Victims Act of 2023 has faced significant legal challenges since its enactment, primarily concerning its retroactive application to revive previously time-barred claims of child sexual abuse. The law eliminated all time restrictions for filing civil actions arising from childhood sexual abuse, thereby allowing survivors to bring lawsuits that had been barred under prior statutes of limitations. In response, several institutional defendants, including religious organizations and school boards, contested the Act’s constitutionality, arguing that its retroactive application unlawfully abrogated vested rights.

The Supreme Court of Maryland recently addressed these challenges and ultimately upheld the constitutionality of the Act’s retroactive application.1 The decision turned on whether a provision of the 2017 law that previously governed such claims constituted a statute of repose—which would have conferred

The Child Victims Act of 2023 has faced significant legal challenges since its enactment, primarily concerning its retroactive application to revive previously time-barred claims of child sexual abuse.

vested rights upon expiration—or a statute of limitations, which could be repealed without violating due process principles. The court concluded that the 2017 provision was a statute of limitations and, as such, did not create vested rights. Consequently, the General Assembly’s repeal of the provision in 2023 did not violate constitutional protections.

1

Roman Catholic Archbishop of Washington v. John Doe, et al., No. 9, September Term,2024; Board of Education of Harford County, et al. v. John Doe, No. 10, September Term, 2024; The Key School, Inc., et al. v. Valerie Bunker, Misc. No. 2, September Term, 2024

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Under Maryland due process jurisprudence, vested rights cannot be retroactively eliminated by legislative action.

However, the court reaffirmed that there is no vested right in the continued application of a statute of limitations, only in a statute of repose, which was not at issue here.

Legislative Background and Procedural History In 2017, the Maryland General Assembly enacted legislation that extended the statute of limitations for child sexual abuse claims and, significantly, added a new provision—Subsection (d) of Courts and Judicial Proceedings Article § 5-117. This provision prohibited the filing of an action against a non-perpetrator defendant—such as an employer or institution—more than 20 years after the victim reached the age of majority.

The law also contained heightened standards for obtaining damages against such non-perpetrator defendants, requiring proof of gross negligence and an employment or supervisory relationship with the perpetrator. The 2017 Act was framed as a legislative compromise that sought to balance the rights of survivors to seek redress with concerns about fairness to institutions that might struggle to defend against decades-old claims.

In 2023, the General Assembly passed the Child Victims Act of 2023, which repealed all time restrictions on child sexual abuse claims, eliminating the 20-year bar for non-perpetrator defendants set by the 2017 law. This repeal was explicitly retroactive, meaning it allowed plaintiffs to bring previously barred claims. Following the law’s enactment, numerous lawsuits were filed against institutional defendants, several of whom moved to dismiss on the grounds that Subsection (d) of the 2017 Act had created a vested right to repose—a substantive immunity from liability that could not be revoked retroactively. These defendants argued that their right to be free from suit had become vested once the 20-year period expired. The trial courts rejected these arguments, and the Supreme Court of Maryland granted review to resolve the constitutional challenge.

Statutory Interpretation: Distinguishing Between Statutes of Limitations and Statutes of Repose The Supreme Court of Maryland’s analysis centered on whether Subsection (d) of the 2017 law constituted a statute of repose or a statute of limitations. This distinction was critical because statutes of limitations can be modified or repealed retroactively, whereas 60

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statutes of repose create vested rights that cannot be disturbed once they have expired.

The court explained that a statute of limitations is procedural in nature, restricting the time within which a plaintiff may file a lawsuit but not eliminating the cause of action itself. It is designed to encourage the prompt resolution of claims and ensure fairness by requiring suits to be brought while evidence is still available. A statute of repose, by contrast, eliminates the underlying cause of action after a set period, creating substantive immunity from liability for potential defendants.

The court determined that Subsection (d) was a statute of limitations based on several key factors. First, it emphasized that Subsection (d)’s limitation period was triggered when the victim reached the age of majority, rather than an event related to the defendant’s conduct, which is more typical of a statute of repose. Statutes of repose typically begin running from the last act of the defendant—such as the completion of a construction project or the sale of a product—whereas Subsection (d) was tied to the plaintiff’s age, which aligns more closely with a statute of limitations.

Second, the court found that Subsection (d) did not eliminate a cause of action, but merely prohibited filing a lawsuit after a certain period. This distinction is crucial because a statute of repose would completely extinguish the legal right itself after a defined period, even if the injury was not yet discovered. The court further considered the legislative history of the 2017 Act, noting that while some documents described Subsection (d) as a “statute of repose,” there was no substantive legislative discussion of repose-like consequences, such as the vesting of immunity. The absence of discussion about creating vested rights led the court to conclude that Subsection (d) was a statute of limitations rather than a statute of repose.

Because the court determined that Subsection (d) did not confer vested rights on defendants, it held that the provision could be repealed retroactively without violating the Maryland Constitution.

Constitutional Analysis and Due Process Considerations Having concluded that Subsection (d) was a statute of limitations, the court next considered whether its retroactive repeal in the Child Victims Act of 2023 violated due process principles under the Maryland Constitution. The key issue was whether the elimination of Subsection (d) unfairly deprived defendants of a vested property right.

Under Maryland due process jurisprudence, vested rights cannot be retroactively eliminated by legislative action.

However, the court reaffirmed that there is no vested right in the continued application of a statute of limitations, only in a statute of repose, which was not at issue here. Because the court found that Subsection (d) did not confer a vested right, its repeal in 2023 was not unconstitutional.

Applying heightened rational basis review, the court analyzed whether retroactive legislation must bear a real and substantial

The Supreme Court of Marylands’ decision has significant implications for attorneys representing both survivors of childhood sexual abuse and institutional defendants. relation to a legitimate government interest. It concluded that the elimination of time restrictions in child sexual abuse claims was justified by compelling public policy reasons,

including the recognition that many victims of childhood sexual abuse do not disclose their abuse until decades later due to psychological trauma, fear, and institutional cover-ups.

The court also considered evidence that many institutions had actively concealed instances of abuse, preventing survivors from seeking justice within the previous statutory limits. Given these findings, the court ruled that the Child Victims Act of 2023 satisfied constitutional due process requirements and could be applied retroactively to allow previously time-barred claims to proceed.

Implications for Maryland Attorneys The Supreme Court of Marylands’ decision has significant implications for attorneys representing both survivors of childhood sexual abuse and institutional defendants. First, the ruling removes all time restrictions on bringing child sexual abuse claims, meaning that previously time-barred claims can now be revived. Attorneys representing survivors should be aware that they may now pursue claims that were previously barred under the 2017 statute of limitations.

Conversely, attorneys representing institutions—including schools, religious organizations, and other non-perpetrator defendants—must prepare to defend against allegations that may stem from incidents that occurred decades ago. Given that many of these cases involve substantial evidentiary challenges due to the passage of time, defense attorneys will likely focus on establishing laches or other equitable defenses to mitigate potential liability. ____________ Jason Medinger is currently serving as an Assistant United States Attorney in the U.S. Attorney’s Office for the District of Maryland.

Any information or views expressed herein are his own and do not necessarily represent the views of the U.S. Department of Justice.

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MEMBER SPOTLIGHT | MEMBER PROFILE

FROM PROSECUTOR TO MENTOR A DVO C AT I N G FOR JUSTICE

J. BURKE MILLER Office of the State’s Attorney for Baltimore City

J. BURKE MILLER, CURRENTLY SERVING AS

the Deputy Division Chief of the Misdemeanor Jury Trial Unit at the Office of the State’s Attorney for Baltimore City, is a role model in the Baltimore legal community. Since April 2023, he has supervised a team of eight–12 junior-level Assistant State Attorneys and several staff members, ensuring the efficient handling of misdemeanor criminal cases. Burke, a firm believer in the value of a good softball team in every prosecutor’s office, is passionate about his job. He takes great pride in his integrity as a prosecutor, recognizing that honesty is a cornerstone of a just legal system. As Deputy Chief and Supervisor, he provides a supportive environment where junior attorneys can express their concerns and seek guidance.

Photo courtesy of Travis Marshall Photography

“

My experience with MSBA's Leadership Academy as a program Fellow and now a committee member has been a defining portion of my career.

Miller is an active runner. While training for his first half marathon, he was diagnosed with cancer for the second time and received treatment from Memorial Sloan Kettering Cancer Center in New York. During this challenging period, with his wife pregnant in Baltimore and him hundreds of miles away, he discovered that Sloan Kettering had a NYC marathon team that raised funds for the cancer center. He reached out to two close friends who told him, “if you run the NYC Marathon, we will run it with you.”

He fell in love with the experience. His team, Burke’s Team, has since raised over $170K. The MSBA recently interviewed Miller. Read below, to learn more about his unique journey and experiences.

What are some accomplishments you've achieved during your career?

As a prosecutor, I have never judged success by wins but more by a willingness to pursue justice when it seems fleeting and by the manner in which I pursue it. I have spent a career fighting for child victims of sexual abuse and homicide and I have endeavored to do so in a manner that is above reproach in terms of integrity and tactics. I don't think anyone is perfect but I think my greatest achievement is that I am very proud of how I have pursued that goal.

Tell us about your current role.

Although I still take a few cases, mainly homicide cases with child victims and/or witnesses, I am now a supervisor in a unit where young prosecutors are learning to present cases before a jury. I am excited to go to work every day and to work with a group of young eager prosecutors and be their trial aid and ethics teacher. I have always been very proud of how I have handled my own cases and now I get to help a new generation of prosecutors find their voice.

Describe a memorable MSBA event or product that has had an impact on you personally or professionally.

My experience with MSBA's Leadership Academy is not exactly an event or product but my time as a program Fellow and now a committee member has been a defining portion of my career.

The fraternal nature of the program and the ability to call upon so many alumni as mentors and friends is invaluable in any profession but especially ours. Then, as a committee member and as a future chair of the committee, the value of the experience has doubled. It is rare to find a program where you can simultaneously be a mentee and mentor, or leader and student.

How do you spend your free time?

Outside of work, my family and our three little kids take most of my time. In the Miller family, we're sports fanatics and are always out and about in our neighborhood in Baltimore City. When I do get some alone time, I am an avid runner. Every year, I gather a group of friends, family and colleagues and together as "Burke's Team" we raise money and run the New York City Marathon as a part of the Memorial Sloan Kettering Cancer Center fundraising team Fred's Team. When we run on the first Sunday of November this year, it will be my 5th straight year. I'm incredibly proud of the fact that we have raised over $170,000 for research at a hospital that treated me and I am extremely proud of the 35 NYC finisher medals we've gathered as a team—over 1/3 of which are held by Maryland lawyers, to boot.

What causes are you passionate about?

As a two-time cancer survivor, I am passionate about men's health and cancer awareness. I try to use Burke's Team as a way to stay healthy and raise money in the fight against cancer but it is also a great opportunity to raise awareness about the importance of taking care of our own bodies. Young men need to be better about checking their bodies and seeing a doctor after finding something but everyone should be vigilant about it. Cancer is a strong, fast, nasty disease that needs no head start! I try to remind everyone to double-check! First, you should check yourself with regular self-exams; and, if you find something, get it checked by a doctor!

Do you find time to relax and unwind?

In our profession, balance is often elusive and I am very lucky to be a person who is happy with his work-life balance. I use my running to relax and unwind, but the rest of my out-of-work life is with my kids who are seven, five and three. So, relaxing? Not exactly. Great?

Absolutely.

Explain, in your own words, the professional satisfaction you receive from helping young lawyers accomplish their goals.

Helping young lawyers used to be something I just enjoyed doing outside of work. Now, it's what I like to do out of work after spending my work days doing the same thing. At its core, our profession is part of the service industry and those in stress or those who are less fortunate than us are frequently those who need our help. If we are uplifting the next generations of lawyers, then we're uplifting our profession and if our profession is founded to aid those in distress, raising the bar of our profession can only serve to uplift our communities. There aren't many things more satisfying than that.

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FOR YOUR PRACTICE | LITIGATION

Keeping the Human in HR When Using in the Workplace

BY AISHA JORGE MASSENGILL, ESQ.

THE INTEGRATION OF ARTIFICIAL INTELLIGENCE (AI) into Human Resources (HR) functions

represents both transformative opportunities and significant compliance challenges. This is particularly true for small businesses seeking operational efficiencies and cost containment. But what are the legal and practical implications of unfettered adoption in a part of the business with access to some of the most sensitive organizational and people-related data? This article examines the legislative landscape for AI adoption in HR practices, analyzes the emerging legal frameworks governing its use, and concludes with some practical tips for legal and business consideration.

There’s no shortage of AI applications targeting the full spectrum of HR Processes. There are tools that help source applicants and screen candidates, conduct video interviews and performance reviews, set goals, and drive compensation and benefits. There are also a myriad of collaboration and productivity applications powered by AI, such as chatbots and others that automate administrative tasks such as Chatbots, Slack, and Zoom’s AI companion that records and summarizes meetings.

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On May 12, 2022, the Equal Employment Opportunity Commission (EEOC) issued its initial guidance on AI in the Workplace in the context of the Americans with Disabilities Act (ADA). In its guidance, the EEOC warned that despite their apparent neutrality, AI tools may violate the ADA during the employee screening process by failing to consider their impact on applicants needing accommodations.

Employers were advised not to blindly rely on vendor promises that their software does not discriminate by ensuring that non-discriminatory design practices and

accommodations considerations remained at the forefront of their adoption.

In 2023, the Biden Administration issued the Executive Order (EO) 141101 on Safe, Secure, and Trustworthy AI, established broad principles for AI governance, including: ● Requirement for notice when AI is used in employment decisions ● Emphasis on preventing algorithmic discrimination

There’s no shortage of AI applications targeting the full spectrum of HR Processes.

● Protection of privacy and personal data ● Transparency in automated decision-making Concerns about AI adoption by the government have not been limited to the EEOC. In April 2024, nine government agencies, including the Departments of Justice and Labor, issued a “Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection and Equal Opportunity in Automated Systems”. Their overarching message was that these federal agencies were poised to monitor the use and development of automated systems across a broad spectrum of use cases and environments to ensure that consumers and employees are protected against abuse or carelessness. The Joint Statement concluded: “These automated systems are often advertised as providing insights and breakthroughs, increasing efficiencies and cost-savings, and modernizing existing practices. Although many of these tools offer the promise of advancement, their use also has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.”

The EEOC issued additional guidance on December 19, 2024, on the potential adverse impact of widespread employer adoption of wearable technology. In its “Wearables in the Workplace Fact Sheet,” the EEOC again warned that using such devices may be tantamount to impossible medical examinations under the ADA. It advised employers adopting such technology to ensure that the use is “job related and consistent with business necessity.”

Closer to home, the Maryland General Assembly passed HB 1255, a bill “Prohibiting, subject to a certain exception, an employer from using an automated employment decision

tool to make certain employment decisions; and requiring an employer, under certain circumstances, to notify an applicant for employment of the employer’s use of an automated employment decision tool within 30 days after the use, and providing certain penalties per violation for an employer that violates the notification requirement of the Act.” The companion Senate Bill SB 957 eventually died due to a lack of enforcement mechanisms and the need for additional financial resources, specifically stating that the state did not have the “technical expertise” needed for enforcement.

Nevertheless, the bills were instructive as they recommended that employers conduct annual impact assessments and provide notice to applicants of use in decision making.

Governor Moore signed an Executive Order on January 1, 2024, calling for the establishment of an AI Subcabinet to ensure appropriate governance of AI within the government.

The Subcabinet is charged with establishing policy, adoption, and assessment framework for AI use.

A 2022 survey of HR Professionals found that 92% of HR leaders planned to increase their use of AI tools within HR. The primary areas include Records Management, Payroll, Recruiting, Performance Management, and Onboarding.

Adoption of AI allows for faster hiring, operational efficiencies, and cost savings through headcount reduction.2 This increased usage comes with a large warning label. As the case of Mobley v. Workday, Case No.23-cv-00770-RFL, makes its way through the courts, employers (and AI vendors) are cautioned against blindly turning the keys of their hiring processes to automated systems. In Mobley, the plaintiff alleges that Workday’s AI-powered applicant screening tools discriminate on the basis of race, age, and

1

This EO was recently rescinded by President Trump and superseded by EO 14141 which attempts to balance U.S. interests in AI development and leadership with the concerns of environmental impacts of data centers. This topic is beyond the scope of this article.

2 “The Future of Work: Intelligent by Design Eightfold AI’s 2022 Talent Survey

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No matter how the politics settle, there remain best practices that should govern the adoption of AI in HR processes. disability in violation of federal and state antidiscrimination laws. It is a putative class action matter now and the courts are allowing claims of direct liability against Workday.

So, what are business owners and employers who need to watch their bottom line and operate a lean workforce to do about the current regulatory landscape? No matter how the politics settle, there remain best practices that should govern the adoption of AI in HR processes.

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●

First, keep your humans involved in the decision-making process. Whether in hiring or performance management, humans must remain involved as the primary decision-makers.

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Provide clear written notice to applicants about the use of AI in your processes.

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Consider providing an opt-out for objecting candidates and be clear about the availability of reasonable accommodations throughout the hiring process.

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Require that the use of AI tools on company systems go through a vetting process that documents the intended use and identifies ways that sensitive company information will be protected.

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At the point of tool adoption, establish clear procedures for human oversight.

This may potentially include convening a standing committee of cross-functional partners (HR, IT, and Legal, for example) to review.

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Ensure that any tool has been properly validated, job-related, and consistent with business necessity.

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Conduct annual impact assessments (preferably under privilege) to determine potential adverse impact.

For existing employees, a business should have: ●

Written policies governing AI use

●

Training programs for HR staff

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Clear procedures for AI system oversight

●

Regular compliance reviews

●

Documentation protocols

Conclusion The integration of AI in HR functions presents significant opportunities for small businesses to improve efficiency and effectiveness.

However, careful attention to legal compliance and risk management is essential. As the regulatory landscape continues to evolve, businesses must maintain flexibility in their implementation approaches while ensuring robust compliance frameworks.

The absence of comprehensive AI-specific legislation in Maryland creates both opportunities and challenges for small businesses. While this regulatory space remains dynamic, adherence to existing privacy, employment, and anti-discrimination frameworks provides a foundation for responsible AI implementation. ____________ Aisha Jorge Massengill is the Founder and Principal attorney of Sedgwick Andrews Legal & Consulting, a firm that helps businesses protect what they’ve built through proactive compliance practices.

Artificial Intelligence and the Law

By Pamela Langham, Esq. MSBA LEGAL CONTENT EDITOR

Artificial intelligence is rapidly disrupting the legal profession. As AI continues to blaze an uncharted path through the legal field, lawyers must stay informed.

MSBA works hard to stay abreast of the recent developments in AI. This free member resource provides an overview of the complex and evolving intersection of AI and the law.

Stay informed, download now http://msba.org/AIandthelaw MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 67

FOR YOUR PRACTICE |

LAW FIRM MANAGEMENT

A Lawyer’s Primer on AI Agents

BY PAMELA LANGHAM, ESQ.

The most simplistic way to explain the dynamics of AI Agents is to distinguish them from the more simple form of generative artificial intelligence technology.

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THE FIRST WAVE OF GENERATIVE artificial intelligence brought us large language models (LLMs) that can analyze documents and provide responses in reaction to a prompt, with speed, but not always with accuracy. We are now witnessing the emergence of a second, more sophisticated wave: Generative Artificial Intelligence Agents, simply referred to as “AI Agents.” Lawyers increasingly find themselves in uncharted territory as clients deploy AI Agents across their business operations. These autonomous systems raise complex questions that go far beyond the ethics of using LLMs or other traditional legal technology concerns. When an AI Agent independently manages a client’s supply chain, for example, attorneys must advise on issues ranging from contract formation authority to liability for AI-initiated decisions. The key challenge isn’t just understanding what these systems can do, but anticipating the cascading legal implications of their autonomous actions.

WHAT ARE AI AGENTS? Generative Artificial Intelligence and LLMs The most simplistic way to explain the dynamics of AI Agents is to distinguish them from the more simple form of generative artificial intelligence technology. There is no single definition of generative artificial intelligence (GAI). In Formal Opinion 512, issued by the ABA Standing Committee on Ethics and Professional Responsibility, the committee chose to define GAI as a technology “which can create various types of new content, including text, images, audio, video, and software code in response to a user’s prompts and questions.” Another widely used definition defines GAI as a “subset of AI that utilizes machine learning models to create new, original content, such as images, text, or music, based on patterns and structure learned from existing data. A prominent model type used by

AI Agents are software programs endowed with artificial intelligence capabilities, enabling them to perceive their environment, make decisions, and perform actions autonomously to achieve specific goals. generative AI is the [LLM].” See General Artificial Intelligence, Cornell Center for Teaching Innovation, last visited February 10, 2025. Examples include OpenAI’s ChatGPT, Anthropic’s Claude, and Microsoft’s CoPilot.

AI Agents AI Agents are “software programs endowed with artificial intelligence capabilities, enabling them to perceive their environment, make decisions, and perform actions autonomously to achieve specific goals. They mimic human cognitive functions such as learning, problem-solving, and pattern recognition. Unlike traditional software that follows predefined instructions, AI agents can adapt their behavior based on new data and experiences.” AI Agents: Transformative Use Cases for Your Company or Brand, Mori, Giancarlo, Medium, October 1, 2024. In simpler terms, AI Agents use

GAI to autonomously perform tasks or make decisions with minimal human intervention. Distinct from LLMs, AI Agents can analyze data and make decisions based on pre-defined goals or learned patterns. AI AGents also learn through their environment, sensing through various inputs like cameras and microphones. They provide recommendations and can learn from their experiences and improve over time. Examples include autonomous vehicles perceiving their surroundings using cameras and sensors, and making driving decisions. AI Agents that understand and generate human language, provide customer support, or carry on conversations with users are an additional example.

COMPANIES USING AI AGENTS According to Mori 2024, AI AGents are essential to organizations in today’s GAI environment because: Operational Efficiency: AI Agents automate repetitive tasks, freeing up human resources to focus on strategic initiatives.

Enhanced Decision-Making: They provide real-time insights by processing large datasets, enabling better and faster business decisions.

Personalized Customer Experience: AI Agents tailor interactions based on customer data, improving satisfaction and loyalty.

Cost Reduction: Automation leads to significant cost savings by minimizing errors and reducing manual labor.

Scalability: Businesses can scale operations quickly without a proportional increase in costs, as AI agents handle increased workloads efficiently.

Employee Productivity: AI Agents streamline workflows by handling routine tasks, allowing employees to focus on higher-value activities, boosting overall productivity and job satisfaction.

TOO GOOD TO BE TRUE? Of course, many organizations have used automated transaction systems before the onset of AI Agents. However, those automated transaction systems are determinative, i.e., programmed with if, then rules. AI Agents are non-determinative.

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Legal professionals need to stay informed about the implications of AI Agents.

Lawyers must advise their clients on the ethical, legal, and regulatory considerations associated with deploying AI Agents, ensuring compliance with relevant laws and protecting against potential liabilities.

AI AGENT’S IMPACT AI Agents are changing how businesses work in many areas, including customer service, marketing, logistics, and healthcare. They are changing business, allowing people to focus on more important work. Critical areas requiring legal guidance include risk management as AI Agents become more integrated into core business functions. Lawyers will be called upon to help clients establish protocols for human oversight, create audit trails for AI-driven decisions, and establish clear boundaries for AI Agent authority. The technology is very useful, but overreliance can cause significant legal problems.

A practical example of how this new technology can be over-relied upon was a case out of Canada decided by a civil tribunal. In Moffatt v. Air Canada, 2024 BCCRT 149 (CanLII), https://canlii.ca/t/k2spq, (retrieved on February 10, 2025), a customer interacted with Air Canada’s online AI tool on their website, explaining that he needed to purchase an airline ticket because his grandmother had died and inquired about a lower fare. The AI tool responded to his inquiry by explaining that if a customer is traveling because of a family death, then the traveler is entitled to reduced airfare. Further, the AI tool advised the customer that he could submit an online form and receive a lower bereavement fare within 90 days after the ticket’s issuance. When the customer submitted his application for a partial refund after the ticket was issued and after his travel, Air Canada denied his request. Air Canada’s bereavement policy provides that refunds or lower rates

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for travel triggered by family deaths will only be considered before a flight and not after the travel was completed. In other words, Air Canada’s AI tool’s independent interpretation of the bereavement policy and decision that Moffatt could apply for a refund within 90 days after travel was incorrect. Moffatt sued Air Canada. Air Canada argued that the AI tool was “a separate legal entity.” The tribunal ruled in favor of Moffatt, stating Air Canada was responsible for the AI tool’s negligent misrepresentations. Even though this case is out of Canada and decided by a civil tribunal, it illustrates the over-reliance on AI technology.

There have also been numerous reports of a Chevrolet dealership AI chatbot agreeing to sell a customer a $58,195 Chevrolet Tahoe for $1. See Chatbot Case Study: Purchasing a Chevrolet Tahoe for $1, Parsani, Cut the SAAS, June 7, 2024.

CONCLUSION Many lawyers are grappling with their clients’ use of AI Agents as there is a rush to implement this new technology. Legal professionals need to stay informed about the implications of AI Agents. Lawyers must advise their clients on the ethical, legal, and regulatory considerations associated with deploying AI Agents, ensuring compliance with relevant laws and protecting against potential liabilities. By understanding the capabilities and limitations of AI Agents, lawyers can help their clients harness the benefits while mitigating risks.

On February 1, 2025, Lerch, Early & Brewer will celebrate its 75th anniversary. It's a significant achievement that reflects our commitment and dedicaaon to the individuals who make our business thrive – our clients.

Our aaorneys have served generaaons of families and business owners looking to care for their loved ones, transact business, and secure legacies. We look forward to helping you rise to your next challenge.

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FOR YOUR PRACTICE | ESTATE PLANNING

How Estate Planning Can Protect Your Clients’ Children’s Inheritance in the Event of a Divorce

BY TODD BORNSTEIN, ESQ.

WHILE MANY PARENTS consider how

to provide for their children through gifts or an inheritance, they may overlook a critical issue: how to protect that inheritance in the event of the child’s divorce. Estate planning offers tools to safeguard assets and ensure they remain within the family, even if a child faces the challenges of divorce.

The Impact of Divorce on Inheritance In Maryland, inheritances are typically considered separate property, meaning they are not subject to division in divorce proceedings unless certain circumstances arise. If a child co-mingles inherited assets with marital property, for example, by placing the inheritance into a joint account or using it to purchase a home with a spouse, those assets may be at risk. Additionally, some divorcing spouses may argue that inherited funds were used for the benefit of the marriage, opening

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the door to disputes over ownership of those inherited funds.

This is why proactive estate planning is essential. It is advisable to ensure that your clients’ children receive and maintain full control of their inheritance, regardless of any marital issues that may arise later.

Tools for Protecting Inheritances There are several estate planning tools you can use to protect the inheritance of your clients’ children from the potential risks of a divorce: Trusts A trust is one of the most effective tools for ensuring that inherited assets remain separate and protected. By placing assets in a trust, a parent can provide for their children while shielding those assets from claims during a divorce. In a typical scenario, a parent establishes a trust for the benefit of a child, allowing the trustee (be it a third party or the child) to manage the assets.

This is why proactive estate planning is essential. It is advisable to ensure that your clients’ children receive and maintain full control of their inheritance, regardless of any marital issues that may arise later.

To maximize protection, the trust can be structured as a discretionary trust, where the trustee has complete discretion over distributions.

This type of trust can ensure that assets are not considered marital property in the event of a divorce. Another option is a spendthrift trust, which prevents creditors, including a divorcing spouse, from accessing the trust assets.

These divorce protection trusts do not need to be created while the parents are living. Rather, it is common for these types of trusts to be created and governed by provisions in the Will or Revocable Trust of the surviving parent. For example, suppose Husband and Wife have one Child who is 40 years old and married. Husband dies first, and at Husband’s death all of Husband’s assets pass to Wife. Upon Wife’s death, Wife’s Will (or Revocable Trust) can provide that, instead of Wife’s assets being distributed outright to Child, Wife’s assets shall be held in a trust for the benefit of Child. The provisions creating the trust and governing the trust will be included in Wife’s Will/Revocable Trust, so there is no need for a separate document creating the Child’s Trust.

Depending upon how the trust is structured, Child may even be able to serve as the sole Trustee of such Child’s trust, thus providing Child with full control over his/her trust and avoiding costly Trustee fees.

Rather, the disposition of these types of assets are governed by beneficiary designations (effectuated by signing hard copy beneficiary designation forms or by online designations). These designations must be kept up to date to ensure that the correct heirs inherit the property and that assets remain separate from a marital estate. For example, if parents, in their Wills/Revocable Trusts provide for their children to receive their inheritance in trust, rather than outright, then beneficiary designations for such life-insurance/retirement accounts/payable on death accounts may have to be updated to designate the trusts created for the children under their parents’ Wills/Revocable Trusts.

It is also important to consider the implications of joint ownership of inherited property with a spouse. Joint ownership of inherited property can inadvertently co-mingle assets and open the door to claims in a divorce. Keeping inherited assets in an individual account under only the child’s name can help preserve the assets’ separate status. However, inherited assets titled in a child’s name (rather than a trust) may expose such assets to a child’s creditors. For this reason, inherited assets left in a trust for a child generally provides the most effective protection against a divorce or any other creditor of a child.

Joint ownership of inherited property can inadvertently co-mingle assets and open the door to claims in a divorce.

Prenuptial or Postnuptial Agreements Encouraging clients to recommend prenuptial or postnuptial agreements for their children is another way to safeguard their inheritance. These agreements allow couples to outline how property, including inheritances, will be divided in the event of a divorce. While estate planning can shield assets, a prenuptial agreement offers additional clarity and can prevent legal disputes.

Gifting Strategies Gifting can also be part of a larger estate planning strategy to protect assets. If a client makes outright gifts to such client’s children during such client’s lifetime, be mindful of how the children use and title those assets upon receipt. It is advisable to have conversations with your clients about keeping inherited or gifted assets separate from marital property.

If a child is already married, a postnuptial agreement can still be executed to address inheritance issues. It is a smart complement to any estate planning efforts, as it can provide clear legal protection for inherited assets.

However, gifting assets in a trust (which would be created during the parents’ lifetimes, rather than under their Wills/Revocable Trusts), instead of making outright gifts, can offer a greater level of protection.

That being said, if children receive their inheritances from their parents in trust, rather than outright, the necessity of a prenuptial or postnuptial agreement with respect to protecting a child’s inheritance becomes less crucial.

Conclusion Protecting the inheritance of your clients’ children from the potential complications of divorce is an important aspect of estate planning. Trusts, prenuptial agreements, careful asset titling, and gifting strategies all play a role in ensuring that your clients’ hardearned wealth remains in the family for generations. You can assist your clients by creating a comprehensive plan that shields your clients’ assets and provides your clients and their children with security and peace of mind.

Beneficiary Designations and Ownership Titles Another way to ensure protection is through careful attention to beneficiary designations and ownership titles. In many cases, assets like life insurance, retirement accounts, and payableon-death accounts pass outside of probate. In other words, the disposition of these types of assets are not governed by Wills.

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From Burnout Balance to

Reimagining Lawyer Support Systems

Keeping Sane While Living with Another Attorney

BY JAMES BELL, ESQ. AND ELIZABETH GEMMELL, ESQ.

SO, I MARRIED A LITIGATOR. In an adversary situation, there is always a winner and loser.

Clients hire us to provide zealous representation, and trust that we will provide the best results possible. Often we need to put ourselves in the way of heated situations to protect our clients.

The practice of law is stressful.

In court I already had to spend time working out settlements for clients, putting on my war paint to go to trial, managing clients, trying to help clients settle their emotions so they can provide helpful testimony in their cases, and taking on their emotional response to what happened in court. I wrap up my day in court and head home to spend time with my wife. That is generally the time that I am already emotionally drained. My brain has already been working from the position of a lawyer; either find something that works for everyone or prepare for a winner takes all trial.

My wife deals with the same issues and stress. We are two lawyers that married each other and deal with the stress that comes with being married to another lawyer. The past 11 years of our relationship has had ups and downs. The career

For me, the first step I had to take was learning that "lawyer" me and who I am after I clock out do not need to be the same person.

I do not need to use my trial skills on my wife.

They are called trial skills, and not husband skills.

choice has led to different ways in which we need to approach each other to actually make the relationship work.

At the start of our relationship, I struggled to understand the difference between negotiating a settlement for a case and deciding what to have for dinner. I would gather as much information as possible on the issue, figure out what asymmetry there was in access to said information, and would use the negotiating skills I had learned. I would avoid making the first offer, I would try to hide my true objective, try to lead her to the outcome that I desired, and work to find middle ground when possible. I would not simply say that I want tacos, but lead her into suggesting tacos. If I dared said I wanted tacos, I would reveal my hand and lose the edge in gathering of information. I would deflect the question onto her, "what would you like for dinner?" or slowly lead her towards what I want without overplaying my hand, "What about something we can eat with our hands to avoid dishes?" Try to make her subconsciously choose tacos by moving the salsa to front and center of the fridge or moving the taco seasoning to the front of the pantry. All of the things that we do for our clients; we are just participating in the dance that is negotiations, but to your partner in life, it is building a wall.

I eventually shifted to a more adversarial style. We would actually present what we wanted to the other and why. Provide evidence as to why tacos were the right choice for dinner tonight. The trial would get heated, but the tacos would not.

The dinner decision eventually became stressful. Making dinner, cleaning up after dinner, those are chores. Choosing what to have for dinner is not a chore; it is a decision we need to learn to make as a team.

For me, the first step I had to take was learning that "lawyer" me and who I am after I clock out do not need to be the same person. I do not need to use my trial skills on my wife. They are called trial skills, and not husband skills. I needed to learn husband skills. Deciding dinner is a collaboration, not a trial or even a negotiation.

Today, we actually worked together on choosing what we were going to do for dinners this week. I got my tacos. All I needed to do was clearly ask for what I wanted. She asked for what she wanted and will get it later this week. We made decisions as a team.

Stress comes with the profession. The way I have learned to be married to another lawyer is not to treat her as another lawyer.

She is not opposing counsel, she is my loving wife.

Being married to a lawyer is not always easy. We went to law school where they famously taught us to "think like a lawyer."

Most of us took at least a class on how to negotiate. We have a unique skill set that we have built up over our careers, but turning those things off, and just living with my wife is my joy.

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TIMING IS EVERYTHING The Productivity Secret Lawyers Need to Know

BY WENDY S. MEADOWS, ESQ.

Do You Know Your Chronotype and Why It Matters?

Let’s get one thing straight: if you’re a lawyer, you’re already a high performer. You’re no stranger to long hours, tight deadlines, and the mental gymnastics it takes to juggle everything on your plate. But here’s the catch—most of us try to do it all on a schedule that fights against how we’re naturally wired.

There’s a deeply ingrained myth that waking up early is the secret to success, but the reality is more nuanced. Your DNA holds the key to when you’re most alert, creative, and productive. Fighting against it? That’s a recipe for exhaustion and burnout. But learning to work with your natural energy patterns? That’s where the magic happens.

Your chronotype—the biological clock that drives your peak performance—is the secret weapon you didn’t know you had.

Once you understand it, you can stop grinding when your energy is at its lowest and start thriving on your own terms.

There’s a deeply ingrained myth that waking up early is the secret to success, but the reality is more nuanced.

Your DNA holds the key to when you’re most alert, creative, and productive.

Understanding your chronotype is like unlocking a cheat code for productivity. It’s not about working more—it’s about working smarter, aligning your schedule with your natural rhythms to achieve more in less time. As a lawyer and coach, I’ve seen firsthand how embracing this approach can transform the way we work and live.

The "Aha!" Moment That Changed How I Work Years ago, I was deep into one of the most exhausting trials of my career. It was a marathon—long hours in court, juggling evidence, wrangling witnesses—and by the time I got home one night, I was completely drained.

But I still had my closing argument to finalize.

My old habits would have made me push through the exhaustion, grinding away at my desk until I fell asleep from sheer fatigue. But this time, I tried something different.

I had a great dinner, set my work aside, and went to bed at 7:30 PM. Yes, 7:30 PM. I woke up at 4 AM the next morning, refreshed and with a new burst of energy. What happened next was nothing short of magic. In two hours flat, I wrote the best closing argument of my life. It flowed with ease. The right words, the perfect cases, and the logic all came together seamlessly. What would have taken me four – six hours the night before was finished in two—and I walked into court that morning feeling sharp, confident, and ready.

That was when it clicked: working against my natural energy cycles was draining and inefficient. Leaning into them unlocked a new level of productivity I didn’t even know was possible. That experience set me on the path to learning more about chronotypes—and using them to help other lawyers optimize their work and lives.

What is a Chronotype?

Merriam-Webster defines chronotype as “the internal circadian rhythm or body clock of an individual that influences the cycle of sleep and activity in a 24-hour period.” In simpler terms, your chronotype is your body’s biological clock as it relates to a 24-hour cycle. It dictates your ideal schedule for sleeping, working, and even socializing.

The Four Chronotypes Historically, people were grouped into three categories: early birds (larks), night owls, and hummingbirds (somewhere in between). Dr. Michael Breus expanded this concept into four distinct chronotypes in The Power of When. Here’s a quick breakdown:

DOLPHINS (10% of the population): Light sleepers who often feel like insomniacs. Dolphins have a low sleep drive, struggle to turn off their brains, and may wake up multiple times during the night.

LIONS (15-20 % of the population): The quintessential morning people. Lions are optimistic, disciplined, and ready to tackle the world first thing in the morning.

BEARS (50% of the population): The “go-with-the-flow” chronotype. Bears’ energy levels align with the sun—rising and setting. They’re at their best during daylight hours and love their sleep.

WOLVES (15-20 % of the population): Night owls who hit their stride in the late afternoon and evening. Wolves prefer to stay up late and sleep in.

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Why Chronotypes Matter for Lawyers

Larger Projects

As lawyers, we’re constantly balancing billable hours, client meetings, court appearances, and administrative tasks. Many of us burn out trying to conform to schedules that clash with our natural rhythms. We have a LOT to cram in every day, and below, I’ll help you see what tasks you’re naturally best at and when. By implementing some of these strategies, you’ll have more energy and drive to get everything done—simply by scheduling your day around when you are most productive for certain activities.

Large projects often require deep focus and extended periods of uninterrupted work. These can include drafting appellate briefs, developing estate plans, strategizing complex cases, negotiating settlements, preparing trial exhibits and arguments, conducting investigations, or reviewing intricate contracts. Timing these tasks to align with your chronotype

Tuning into your chronotype also matters beyond productivity. When you live in alignment with your chronotype, you have a better chance of preventing illness, mental health disorders, cardiac disease, and even cancer. (Logan R. W., McClung C. A. (2019). Rhythms of life: circadian disruption and brain disorders across the lifespan.

Nat. Rev. Neurosci. 20 49–65. doi:10.1038/s41583-018-0088-y).

When you live in alignment with your chronotype, you have a better chance of preventing illness, mental health disorders, cardiac disease, and even cancer. can make them feel more manageable and less draining.

Timing these tasks to align with your chronotype can make them feel more manageable and less draining.

When you work in alignment with your chronotype, you can: Improve productivity Feel less exhausted Support your overall health and well-being Support your physical and mental health Optimizing Your Lawyer Life by Chronotype Let’s dive into practical ways to optimize your schedule based on your chronotype. These suggestions aim to help you identify the best times to tackle specific tasks for peak performance. Some of what I recommend below might feel counterintuitive to my usual advice—and that’s okay. The idea here is optimization for chronotypes.

While I’m still a huge advocate for a solid morning routine— including activities like working out, meditating, journaling, or reading—this guide is tailored for optimal working lawyer performance. The goal is to align your most demanding tasks with your natural energy peaks. That doesn’t mean abandoning other habits; it means recognizing there’s flexibility in how you structure your day. If you can make even one small adjustment to improve your productivity or energy levels, we’re making progress.

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DOLPHINS (3-6 PM): Use the late afternoon– when the phone stops ringing–to focus on complex tasks like drafting a brief or analyzing case law.

LIONS (1-4 PM): Block off your calendar for uninterrupted work after lunch when you’re still sharp enough to dive deep into demanding projects. Another great time for you to get things done is as soon as you wake up (assuming you aren’t in goal-setting mode).

BEARS (9 AM-12 PM): Tackle big projects

mid-morning during your peak focus window.

Avoid distractions by shutting your door or using a "do not disturb" sign.

WOLVES (2-4 PM): You’re finally firing on all cylinders. Save your most demanding tasks for this window. Your golden hours are also in the evening. If you think it best as soon as your family is down for the night, use those hours between 9-11 PM to knock out work–but go into that time block with a clear goal/to-do list in mind.

Creative/Dreaming/Goal-Setting Time

Respond to E-Mails

Creative thinking and setting long-term goals require moments of introspection and free-flowing ideas. For lawyers, this could mean brainstorming unique case strategies, planning professional growth, or mapping out a firm’s future direction. Aligning these activities with your chronotype ensures clarity and focus.

Emails can be one of the most time-consuming tasks for lawyers.

From client updates to scheduling matters, timing your email sessions with your chronotype can help you manage your inbox without draining your energy.

DOLPHINS (11 AM-1 PM): Use this sweet spot to

DOLPHINS (9-11 AM): Start your day with low-effort tasks like clearing your inbox. This helps you warm up for higher-level work.

LIONS (6-9 AM): Take advantage of your early-

LIONS (12-2 PM): Midday is perfect for tackling emails when your energy naturally dips.

brainstorm creative strategies or reflect on long-term goals.

morning energy to dream big. Whether it’s setting career milestones or mapping out your firm’s growth, this is your prime time.

BEARS (7-9 AM): Early morning or late evening

is best for introspection. Use this time to think creatively about case strategies or personal goals.

WOLVES (8-9 AM): Creativity flows when you first wake up as your mind transitions out of REM sleep. Use this moment of clarity to capture lingering ideas from your dreams or unexpected insights sparked by your snooze button ritual.

Meetings Meetings are an inevitable part of a lawyer’s day, from client consultations to team discussions. Scheduling these interactions during your optimal times can help you bring your best energy and focus to the table.

DOLPHINS (4-7 PM): Late afternoon is your sweet

spot for meetings. You’ll be alert and ready to engage. (Yes, this overlaps with your project time, too–plan accordingly). You may also want to plan meetings between 12-2 because this is when your energy will be dipping; the natural endorphins of a meeting may help you pull through.

LIONS (9-11 AM): Schedule important client or team meetings during your peak energy hours and close to when you get into the office.

BEARS (12-2 PM): Use this post-lunch slump for lighter tasks like email responses.

WOLVES (11 AM-1 PM): You are finally awake and

ready for human interaction in a mild form. Tackle emails and busywork.

Working Out Physical activity is essential for managing stress and maintaining energy, especially for busy lawyers. Scheduling workouts based on your chronotype can enhance your performance and help you stay consistent.

DOLPHINS (7 AM): Exercise first thing to kickstart your day.

LIONS (5-6 PM): Late-afternoon workouts can boost social energy. (I am a Lion and LOVE working out in the morning, and I 100% agree that this is hard. So, what do I do? I mix it up. On weekends, I know a late workout will energize me and help me stay alert during date night).

BEARS (7:30 AM or 6-7 PM): Morning workouts are ideal, but evening sessions can also work.

WOLVES (6-7 PM): Use your evening energy surge for physical activity.

BEARS (3-6 PM): Use the late afternoon–when your mood is best–for networking or mediation sessions.

WOLVES (4-6 PM): Capitalize on your evening

energy to dominate meetings and negotiations.

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Bedtime In every case, start to wind down an hour before your bedtime with no screens, food, sugar, or alcohol.

DOLPHINS: 11:30 PM LIONS: 9-10 PM BEARS: 11 PM WOLVES: Midnight Real-Life Talk: The Grind Let’s be real: ideal schedules sound great in theory, but work never waits for the “perfect” time. Deadlines, emergencies, and client demands can throw your day into chaos. The key isn’t perfection—it’s adaptability.

There will be seasons in your life when work is heavier, and the grind feels unavoidable. During those times, give yourself permission to lean into your natural, high-performance windows—even if they fall at unconventional hours.

If you’re sharpest at 4 AM, dive into your most complex tasks then. If your brain lights up at midnight, embrace it. The important thing is to work when your energy is at its peak.

But here’s the other side of the coin: even during a heavy work season, make time to recharge. Balance isn’t about perfectly dividing your time every day—it’s about making space to refuel so you can sustain your performance long-term.

Whether that means a quick walk in the middle of the day, a Sunday spent fully offline, or getting a solid night’s sleep, find moments to breathe.

Balance isn’t about perfectly dividing your time every day— it’s about making space to refuel so you can sustain your performance longterm. Whether that means a quick walk in the middle of the day, a Sunday spent fully offline, or getting a solid night’s sleep, find moments to breathe.

PRO TIP: Protect your peak focus blocks fiercely. Let colleagues know you’re unavailable during those times and schedule lighter tasks (like emails or admin work) for your energy dips. At the same time, carve out intentional time for rest— it’s as crucial as the work itself.

Final Thoughts Knowing your chronotype isn’t just an interesting fact—it’s a game-changer.

It helped me break old habits that weren’t serving me and unlocked a more productive, energized way of working. Imagine what it could do for you.

Start small. Make one adjustment. See how it feels. And remember, whether you’re a lion, bear, wolf, or dolphin, working with your natural rhythm is always the right move.

Recommended Reading: The Power of When by Michael Breus, PhD, The Circadian Code by Satchin Panda, PhD, and Sleep Smarter by Shawn Stevenson.

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_______________ Wendy S. Meadows is a best-selling author, family law mediator, and life coach dedicated to helping professionals find balance and beat burnout. A former litigator turned consultant, Wendy brings over 20 years of experience in law, coaching, and business strategy. Recognized as one of Maryland’s Top 100 Lawyers, she is also an AV Preeminent-rated attorney and a Super Lawyer. Through her work, she helps individuals and law firms create sustainable success while maintaining well-being.

HEALTH & WELLNESS | A PERSONAL STORY

From Trials to Triumph: A Personal Story of Healing and Hope

My name is **** and I am an addict. I have been in recovery for longer than I used, but it still feels like yesterday that my life spiraled out of control. I come from a long line of alcoholics, and despite abhorring their choices, I found it all too easy to turn to alcohol and drugs every time I felt overwhelmed. And I felt overwhelmed a lot. As a kid, I had the usual adolescent concerns . . . Am I cool enough? Good looking enough?

Smart enough? And I discovered at 13 that I could check off at least a few of those boxes with a cigarette.

A beer. A pill. Really, whatever was handy that helped me not feel like me. As I got older, I discovered more substances and behaviors that could take me outside of myself, at least for a little while. I partied and thought that's just what people do because I didn't know anything else.

At 18, I met a like-minded individual who introduced me to the first great love of my life: heroin. After my 19th birthday, we moved to California, living out of a car until we could scrape up enough to get a small apartment. We got jobs, but still slept on the floor because we couldn't afford both drugs and furniture.

We thought we were fine.

Heroin does that. It takes every worry and fear and turns it into a warm blanket of content indifference.

But the habit insists upon itself, and before long, we were homeless again. I ended up kicking a $120/day habit on a bus back to the East coast, to beg my folks to give us a place to stay. I was sicker than I thought someone could be and still live. I swore I would never put myself through that again.

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It took about two months before we were back on drugs. We broke any number of laws to support our habit, but it's not a sustainable life. We got kicked out of my parents' house and got ourselves arrested.

As soon as we were out on bail, we attempted suicide in a fast food bathroom. I prayed that we would take our last breath together, because I simply saw no way out for us. I had never learned how to deal with life on life's terms, and my partner sure didn't help. What kind of future could we have if all we knew was drugs?

We survived, but not before we had ruined every relationship in our lives. Friends, families, jobs, homes . . . Gone. Again and again.

Eventually, several attempts to quit, a stint in rehab, halfway houses, and a very pivotal break-up with a certain bad influence later, I realized that the real problem wasn't the drugs. It was me. At this point, I had somehow managed to luck into an office job and had enrolled myself in community college just so I could say I was working towards something. I still felt like I was somehow less than everyone around me, but I got good grades for the most part and I did well at work. Still, the old habit insists, and the last time I picked up, I couldn't stop. Years had gone by and here I was, addicted and praying for death yet again.

Something had to change. I had to learn to ask for help.

It's funny . . . they say “ask and ye shall receive” but I had no idea how much I would get. I called my parents, who had long since disowned me, and begged them to help me. For the first time, I was entirely candid about how far down my life had spiraled and how desperate I was for change. And despite everything I had done to

I learned that my life could have some purpose, that I could help people, that I could be worthwhile to have around. I learned that while I may never be cool enough, good looking enough, or smart enough, I am enough, just the way I am. And I always was. them, they helped me get the treatment that saved my life. I learned how to quiet the habit, so its insistence no longer governed my choices.

I learned that my life could have some purpose, that I could help people, that I could be worthwhile to have around. I learned that while I may never be cool enough, good looking enough, or smart enough, I am enough, just the way I am. And I always was.

My life took off from there. I worked my program, went to meetings, volunteered, worked steps, and slowly but surely rebuilt a far more stable existence. I excelled in school and met my second great love: the law. I loved the idea of figuring out why things are the way they are . . . why the laws say what they do, and how they evolved to say just that and nothing else. So, naturally, I went to law school. I graduated summa cum laude with more than a few accolades and got an amazing job with one of the country's largest groups of practitioners. Think about that. The junky criminal who wanted nothing more than to die is now a practicing attorney. I met my third great love and now I have a family - spouse, kids, mortgage, pets - the whole enchilada. And I help people for a living. With the chemicals gone, I don't need to not feel like me.

Because I am and always was a pretty awesome person; I just needed a little help to see that.

Thank you to my parents, my family, AA and NA, and everyone else who believed in me when I couldn't.

Thank you to MSBA LAP for getting me through the Character Committee and keeping my recovery fresh in my mind. If I can just remember to ask for help, I need never forget that I am, and always was, enough.

The Maryland Lawyer Assistance Program (LAP) has assisted thousands of Maryland lawyers FOR TOLL-FREE CONFIDENTIAL ASSISTANCE CALL 1.888.388.5459 The Lawyer Assistance Program provides free, confidential assistance to all Maryland lawyers, judges, law school students, and support staff by offering assessment, referral, short-term counseling, and continued support to ensure long term success. If you are concerned about another lawyer you can make an anonymous referral to LAP. We offer financial assistance for Mental Health and Addiction Treatment.

Please feel free to reach out to our LAP Committee Members and Volunteers www.msba.org/health-and-wellness/

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Slam the Brakes!

6 CLIENTS TO AVOID . . . IF YOU RECOGNIZE THEM

BY IRWIN R. KRAMER, ESQ.

Q.

After two other lawyers let her down, a sexual harassment victim approached me to fight for fair compensation. I haven't done these cases before, but she thinks the case is worth millions in light of the #MeToo movement.

Should I take the case?

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In a word that we don't use often enough,

When used correctly, this tiny word has the power to eliminate significant headaches, malpractice claims, and grievances. As much as we might like, we cannot say "yes" to every worthy cause or to all who seek our help.

Not to be unsympathetic. But a client who was victimized at work, expects to recover millions, and criticized two other lawyers for failing to achieve this objective may raise red flags.

Even in the #MeToo era, sexual harassment cases aren't all that easy to prove and, lacking experience with these cases, you may be the third lawyer to "let her down."

Your lack of experience in sexual harassment cases is a hurdle, but not an insurmountable one. “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.”

MARPC 1.1 comment [2]. If you are willing to put in the time to learn a new area of law, and won’t be charging the client for necessary study, this may be one way to gain competence.

“Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Id. It's okay to leave your comfort zone if you have the time and the desire to gain sufficient competence. But there are reasons to be uncomfortable over the prospect of representing this particular client in your very first case of this kind.

Deciding whether to take the case requires more than an evaluation of its merits. You must evaluate the client as a person before offering your services to her.

To serve existing clients well, there are several types of clients we must try to avoid. While we can’t always spot them in advance of retention, we must "just say no" when we recognize the following people:

The Critic Those who have had bad experiences with other lawyers, or are quick to criticize their work, are more likely to complain about you in the future. While it’s possible they’ve genuinely had poor experiences in the past, it’s far more likely that the problem lies with them, not their previous lawyers. Even if you are convinced that her first two lawyers did a lousy job, bad experiences may taint a client’s view of “all lawyers.” If so, this client may be predisposed to find fault with your work as matters progress. If this client complains about two others, you may be next.

NO.

The Vengeful You are an attorney, not an instrument of revenge. If you detect a desire to exact some form of retribution on the part of a prospective client, you could become her next target. Divorce lawyers must be especially weary of clients who not only want aggressive representation, but want it to hurt the other side. Though cases involving emotional trauma may produce these feelings, you must set important boundaries on the nature of your representation and objectives. Unless you have reason to believe that you can diffuse the client’s anger, you should just say “no.”

The Dreamer Unless you can bring this person down to reality, her "slam dunk" multi-million dollar case isn't worth it. Avoid clients with unrealistic expectations on the results you can achieve, the cost of your services, the time and attention you can provide, or the speed of legal solutions. These clients often lack a clear understanding of the legal system’s limitations, the risks inherent in litigation, or the realities of attorneyclient relationships. Dreamers are easily disappointed when their unrealistic visions clash with legal reality, and they’ll often blame you when things don’t go as they imagined.

They may also resist your advice, push for aggressive but counterproductive strategies, or grow resentful over fees as their “guaranteed win” drags on without results. If the client has already cycled through multiple lawyers, it’s often a sign that no one could meet their impossible standards. During initial consultations, probe their expectations carefully. If they’re unwilling to temper their fantasies, think twice before taking them on. A lawyer’s role is to advocate effectively, not to indulge wishful thinking.

The Shopper There may be a reason this person can't find the “right” lawyer. She may not be the “right” client.

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Just as lawyers come in all shapes, sizes and personalities, prospective clients do not fit into perfect categories. You must determine whether a particular client’s personality, character and case fit your own temperament.

over fees or compare your services to cheaper alternatives may undervalue your expertise, or expect premium service at a discount rate. These clients also tend to have unrealistic expectations about outcomes. Rather than build a trustworthy relationship, such clients are less likely to respect your advice, your boundaries, or your value. If a prospective client seems more interested in your fees than in your qualities as counsel, let her shop for the “right” lawyer somewhere else.

The Cheater Those who cheat others may do the same to you. Whether through dishonesty, bad faith, or manipulation, these clients are often just as willing to cheat their own lawyers or place you in professional and legal jeopardy.

They may also be inclined to dispute your fees, delay payment, or exploit ambiguities in your engagement agreement. Beyond the direct risks they pose to your practice, clients who seek to use the law as a weapon to achieve unjust or inequitable results can tarnish your professional reputation and undermine your credibility with courts and colleagues. Representing such clients may also create ethical dilemmas, as their goals can conflict with your duties of candor to the tribunal and fairness to opposing parties. If a prospective client’s motivations or tactics feel morally questionable, they likely are. Even if you can achieve their objectives through legal means, do you really want to waste your talent on a cheater?

The Evader One important exercise in assessing a potential client involves pointed questions designed to probe the potential weaknesses of her case. Does this person answer questions directly and provide consistent answers? Does the person get defensive when challenged on some details?

Does the person remember things that she should remember, or hide behind a memory lapse as you probe her story? Is she candid in disclosing facts even when they may not present her in the best possible light? Those who resist questions about potentially adverse facts or conceal information make bad witnesses and even worse clients.

Just as lawyers come in all shapes, sizes and personalities, prospective clients do not fit into perfect categories. You must determine whether a particular client’s personality, character and case fit your own temperament.

Trust your instincts. It’s far better to walk away from a problematic client at the outset than to find yourself entangled in their web later.

Nobody's perfect. But if you are rude to my staff, display anger or tell me that you need a "pit bull," you are not likely to become or to remain a client of mine. I prefer to work with people that I like, on cases that I like when I believe I can achieve worthy and realistic objectives.

Otherwise, I can just say "no."

____________ Irwin R. Kramer advises lawyers and law firms throughout Maryland and the District of Columbia. Combined with significant trial and appellate experience, his law firm management experience gives him an appreciation for the pressures of law practice and the ethical issues confronting lawyers daily. He also publishes a regular blog on legal ethics at https:// attorneygrievances.com.

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g n i c n a l a B s e l a c S e th

BY AMY DILCHER,ESQ. THOMAS ADRIEN, BLAIR WHITMAN AND ALI HABASHI

How Law Firms Can Support AttorneyCaregivers

Many professionals, including attorneys, face the dual responsibility of managing their careers while serving as caregivers. This additional role can be challenging and may significantly impact physical and mental well-being, productivity, career progression, client relationships, and potentially the ability to continue working.

Caregiving is a widespread experience. Research from Harvard Business School indicates that 73% of employees across various sectors, including law firms, have caregiving responsibilities in some capacity.1 Whether caring for children, elderly parents, or loved ones with chronic health conditions, attorneys often require additional support and resources.

Law firms can implement a variety of practical strategies to address the challenges faced by attorney-caregivers. These measures benefit not only the caregivers and their families but also the firms themselves by helping to retain talented professionals. By fostering a supportive environment, law firms can demonstrate a commitment to valuing both personal well-being and professional growth. This approach not only enhances job satisfaction and loyalty but also cultivates a workplace culture that supports a healthy work-life balance.

1

Cascio, Elizabeth, et al. The Caring Company: How Employers Can Help Employees Manage Their Caregiving Responsibilities—While Reducing Costs and Increasing Productivity. Harvard Business School, Managing the Future of Work, January 2019. https://www.hbs.edu/managing-the-future-of-work/ Documents/The_Caring_Company.pdf.

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How Caregiving Affects Attorneys Attorney-caregivers frequently find themselves caught between competing priorities: the demanding hours required by their legal careers and the needs of the individuals who depend upon them for their care and wellbeing. This dual responsibility places them in a perpetual state of being pulled in two directions at once. As a result, attorney-caregivers encounter numerous daily challenges that can accelerate burnout and increase the risk of attrition within the profession.

Increased Stress When stress becomes unmanageable, both professional and personal lives can suffer significantly. Attorney-caregivers often find themselves trapped in a vicious cycle; they are too exhausted or pressed for time to complete their work tasks effectively, and simultaneously, they are too overwhelmed by work pressures to manage family dynamics that require patience and understanding.

The severity of stress faced by this group prompted the U.S. Surgeon General to issue an advisory in August 2024, “highlighting the urgent need to better support parents, caregivers, and families.” According to the Surgeon General’s report, more than 40% of parents reported that they are so stressed on most days that they cannot function effectively, describing their stress as completely overwhelming.2 This illustrates the critical need for interventions to alleviate the stress burden on attorney-caregivers.

Career Stagnation While caregiving can be a deeply rewarding role, it often demands personal sacrifices. Women, in particular, encounter barriers in their professional lives due to their caregiving responsibilities, especially those with families. Despite women surpassing men in law school enrollment, evidence of a “motherhood penalty” remains prevalent. This phenomenon suggests that women who decide to have children frequently experience setbacks in their career progression or face diminished opportunities as a consequence of their caregiving commitments.3 Addressing these systematic challenges is essential to ensuring equitable career advancement for all professionals.

2 Homethrive. “How to Support Working Parents.” Accessed December 20, 2024. https://homethrive.com/ how-to-support-working-parents/.

3 American Bar Association. “Lawyers Report Feeling Penalized for Being Mothers, Especially Women of Color, New Report Finds.” Last modified October 2023. https://www.americanbar.org/news/abanews/abanews-archives/2023/10/lawyers-report-feeling-penalized-mothers/.

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The demanding nature of both legal work and caregiving responsibilities often leads to attorney-caregivers experiencing physical neglect. This dual burden can result in insufficient sleep, unhealthy eating habits, and a lack of regular exercise. Consequently, these lifestyle challenges can give rise to various health issues, which may lead to increased absenteeism or diminished productivity.

Attorney-caregivers may find it difficult to sustain the fastpaced demands of their dual roles, ultimately impacting their overall well-being and professional performance.

Caregiving is a widespread experience. Research from Harvard Business School indicates that 73% of employees across various sectors, including law firms, have caregiving responsibilities in some capacity.

Burnout

How Caregiving Affects Law Firms

Given the extensive challenges outlined above, attorneycaregivers are frequently at risk of experiencing burnout.

The continuous struggle to balance professional obligations with caregiving duties can significantly impact both their work and home lives. As feelings of inadequacy in managing these dual roles intensify, some may consider leaving their careers entirely to prioritize caregiving and the self-care they urgently require.

Law firms inevitably experience the ripple effects of the challenges faced by attorney-caregivers, particularly when attorneys leave their profession to focus on caregiving responsibilities. These impacts manifest in several ways:

Physical Neglect

It is important to understand that the consequences of burnout extend well beyond the individual attorneycaregiver. The added responsibilities they shoulder affect not only their own well-being and that of their loved ones but also have a significant impact on their firms and clients. Addressing these challenges is essential to creating a supportive environment that benefits all stakeholders.

By proactively tackling burnout, firms can enhance overall productivity, maintain client satisfaction, and support the long-term success and well-being of their workforce.

Reduced Productivity: Research from the Rosalynn Carter Institute indicates that “caregiver employees provide an average of 20 unpaid caregiving hours per week.”4 This significant time commitment often encroaches on work hours, requiring caregivers to make calls, provide transportation, or be on-call for emergencies. As a result, reduced billable hours affect both attorneys and their clients.

Increased Turnover: Nearly one-third of caregivers voluntarily exit the workforce to attend to their loved ones. This trend contributes to high attrition rates within the legal profession, particularly where caregiver support is lacking.5

4 Rosalynn Carter Institute for Caregivers. “New White Paper Reveals Why One in Five Employees Are at Risk of Leaving the Workforce and What Employers Can Do to Help.” Accessed December 20, 2024. https://rosalynncarter.org/new-white-paper-reveals-why-one-in-five-employees-are-at-risk-of-leaving-the-workforce-and-what-employers-can-do-to-help/.

5 Rosalynn Carter Institute for Caregivers, “New White Paper Reveals Why One in Five Employees.”

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Practical Strategies for Integrating Caregiving Support

Client Dissatisfaction: When an attorney departs to focus on caregiving, the consequences extend beyond the costs of hiring a replacement.

The transition can disrupt client relationships, leading to dissatisfaction as clients navigate changes in their legal team.6

Equity in the Workplace: The level of support provided to attorney-caregivers influences the demographics of those who work or advance within a firm. Significant gender disparities remain, with women disproportionately shouldering caregiving duties. This disparity is evident in tasks such as arranging childcare (65% of mothers compared to 7% of fathers), scheduling doctor appointments (71% of mothers compared to 9% of fathers) and assisting with homework (41% of mothers compared to 12% of fathers).7 These added responsibilities have numerous potential impacts, including driving women out of the workforce and hindering career advancement.

As of 2023, women account for 27.76% of all law firm partners.

Addressing these issues is vital for fostering a more equitable and supportive work environment that acknowledges the contributions and challenges of attorney-caregivers.

To create a truly supportive environment, law firms should first delve deeper into understanding the specific caregiving challenges faced by their attorneys, then implement support solutions based on findings.

6 7

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To create a truly supportive environment, law firms should first delve deeper into understanding the specific caregiving challenges faced by their attorneys, then implement support solutions based on findings.

By gaining insights into these needs, firms can develop comprehensive strategies that not only incorporate digital solutions but also adapt workplace policies to better accommodate the needs of their employees. Below please find several practical strategies to consider:

Understanding Caregiving Needs Many individuals may be hesitant to disclose personal challenges such as caregiving responsibilities. To gain insights while preserving confidentiality. Implement anonymous surveys to gauge how many employees are caring for a loved one at home. This data can help identify the scale of caregiving responsibilities within the firm. In addition, leave and stay interviews may be used to explore caregiving challenges that might contribute to higher attrition rates. These conversations can reveal valuable insights into employee needs and concerns.

Implementing Flexible Work Arrangements Flexibility in work schedules can significantly benefit attorney-caregivers. Allowing employees to adjust their work hours can help them manage their caregiving responsibilities alongside their professional obligations.

An adjustment of hours can make a significant difference in employee satisfaction and productivity.

Offering Support Solutions Providing effective support for attorney-caregivers requires an investment in benefits that are specifically tailored to their unique needs. One impactful approach is the implementation of support solutions into benefits packages that assist attorney-caregivers with various tasks. Such resources offer live support from social work professionals who offer caregiving assistance, answer questions, provide navigation, deliver emotional support or assist with essential tasks such as scheduling healthcare appointments and researching local care assistance, ensuring caregiving duties are managed efficiently. Together, these resources help caregivers save time and reduce stress and empowers them to balance their professional and caregiver responsibilities.

Law.com. “The Caregiver Challenge in Law Firms and How to Address It.” Last modified October 28, 2024. https://www.law.com/2024/10/28/the-caregiver-challenge-in-law-firms-and-how-to-address-it/?slreturn=20241217164006.

American Bar Association, “Lawyers Report Feeling Penalized for Being Mothers.”

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Establishing Caregiver Resource Groups Creating an employee-led group offers caregivers access to resources, advice and emotional support from peers who understand their challenges. Establishing such a group also signals the firm’s recognition and support of caregivers, fostering an inclusive and supportive workplace culture.

Promoting Stress Management and Mental Health Support Recognizing the high levels of stress and mental health challenges faced by attorney-caregivers, law firms can play a pivotal role by integrating stress management and mental health support initiatives into the workday. Offering educational programs and opportunities for activities such as chair yoga, meditation, and mental health and wellness sessions can greatly

By implementing these strategies, law firms can create a work environment that not only supports the caregiving responsibilities of their employees but also values their overall well-being and professional growth.

benefit employees. These practices not only help in reducing stress but also enhance focus, resilience and overall well-being. By providing dedicated time and resources for such activities, firms demonstrate a commitment to the holistic health of their employees, fostering a supportive work environment that values mental health as much as professional success. This proactive approach can lead to improved morale, increased productivity, and a more engaged and satisfied workforce.

_____ Amy Dilcher is Special Counsel in Sheppard Mullin’s Corporate practice based in Washington, D.C. Thomas Adrian is the Senior Director of Human Resources at Sheppard Mullin. Blair Whitman is the Vice President of Client Success, and Ali Habashi is the Senior Content Manager at Homethrive, a caregiving benefit offered by many leading employers that includes 24/7 access to AI-driven care tools and 1-on-1 live support from experienced Care Guides to support unpaid family caregivers.

Created by lawyers, for lawyers.

R

Lawyers seek advice from lawyers.

Why wouldn’t you buy your insurance from lawyers as well?

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How to Solve the Performance-Wellness Conundrum

BY ANNE E. COLLIER, MPP, JD

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WE HAVE BEEN TAUGHT that choice is a

necessary part of life. There are many adages–– words of wisdom––about having to choose, difficult choices, easy choices and no choice. “You can’t have it all,” “you have to choose between what is right and what is easy” and being “between a rock and hard place” are all examples of the thinking that pervades our culture. More succinctly stated, for the most part, we are trained to think in either/or terms.

This either/or thinking presents as the performancewellness conundrum––that we either have high performance or wellness, and the two cannot coexist.

We see it today in the myriad discussions about whether working virtually, being back in the office or a hybrid arrangement is better. Better for what? The discussions

free from unnecessary fear, frustration and drama. Consider the source of tension headaches, backaches and sleepless nights. High performance is meeting or exceeding goals for client service. Colleagues are engaged, proactive and support each other. They are effective and get results.

While performance requires hard work and a lot of it, that isn’t truly the issue. The real question is whether unnecessary negatives pervade to such a degree that they damage culture, performance and of course, wellness. These negatives are also what hurts a firm’s ability to recruit, retain attorneys and staff and affect other key factors that influence performance and wellness. Some suffer in silence––they “gut it out,” feel perpetually “in trouble” and at risk for their livelihood. Does any of this sound familiar?

If it does, it is the culture, not the need to perform well that undermines both performance and wellness.

Wellness is more than a massage or a vacation, although both may contribute to wellness. At its core, and for true wellness, a person’s work environment needs to be largely free from unnecessary fear, frustration and drama.

hinge on the choice between performance and wellness.

The very presentation as a choice establishes a context in which we assume it is impossible to have both high performance and wellness. The consequence of this context is that we don’t look for ways to have both. That is the danger of either/or thinking.

What if you bucked conventional wisdom, applying both/ and thinking? It would certainly require setting aside the routine approach, involve more analysis, require creativity and, of course, some amount of optimism. It’s not as simple as making a choice and being done with it. The challenge is to figure out how to meet these seemingly contradictory needs. It requires you to really look at performance and wellness as more than a simple two-dimensional puzzle.

Wellness is more than a massage or a vacation, although both may contribute to wellness. At its core, and for true wellness, a person’s work environment needs to be largely

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What exactly is culture? According to Dr. William Sparks, culture is the collective emotionality and underlying personality of an organization as determined by how people deal with stress and treat each other. In a culture that promotes performance and wellness, the collective emotionality and underlying personality are passion and authenticity.

In a passionate, authentic, high-performing and well culture, colleagues are open, honest and communicate directly. Colleagues respect and value each other’s opinions.

They trust each other. They surface issues before they get out of hand. Everyone is engaged and fulfilled by the work.

They are resilient--they recover from setbacks. They are optimistic and effective. This is a culture built on both/ and thinking––people wrestle with challenges until they creatively devise extraordinary solutions. If you want this culture, keep reading.

In a passionate, authentic, high-performing and well culture, colleagues are open, honest and communicate directly. Colleagues respect and value each other’s opinions.

Seven Strategies for Achieving a Culture of High Performance and Wellness Now for the how. You can simultaneously have both performance and wellness—both/and—by cultivating culture. Adopt any or all seven strategies:

01

Be a system thinker, not a blamer of persons.

Culture is systemic––not person-centric. Fix suboptimal performance by focusing first on systemic issues such as training and communication. Look at your role in the system, especially if you are a leader. Remember that blame begets a blame-ridden culture, undermining both performance and wellness.

02

Think objectively, speak candidly.

Whether it’s dealing with challenges to the firm’s viability, giving feedback to an associate or counseling a client, think objectively about the challenge. You serve yourself, your colleagues and the culture by candidly addressing issues with the right people. Inaction-oriented gossip signals avoidance.

03

Make it safe to raise concerns.

Cultures in which colleagues feel safe are cultures in which issues are raised and addressed without covert or overt punishment. Embrace all feedback and the courage it takes to deliver it, even if you do not agree with it.

04

Ruthlessly prioritize.

You wouldn’t be where you are if you weren’t ambitious.

Be realistic about what you can accomplish within a time frame. While there is a time for cheerleading, be mindful that you aren’t discouraging honest communication about overload.

05

Clean it up.

Initiate so-called “difficult conversations” as part of your commitment to maintaining positive relationships and achieving results. Don’t focus on proving you are right.

Instead, stay solution focused. Communicate that you value other perspectives and believe that colleagues are well intended.

06

Clarify and share decision-making criteria.

Culture includes perceptions of fairness. Ensure the clarity of criteria and efficacy of decision-making processes, work assignments, credit, compensation determinations and other opportunities.

07

Keep your word.

Keeping your word means that your word has integrity–– it is whole. Without integrity communication fails, and performance suffers because people can’t rely on what they hear. Without integrity, colleagues are stressed, wondering if they can rely on your word, and you feel shame. Do what you said you would do when you said you would do it. And when you can’t, say that too. That is integrity.

If you and your colleagues implement the seven strategies, you will have created a blame free, no-drama, highperforming, well environment in which colleagues support each other. Sounds like a great place to work, doesn’t it?

_____ Anne E. Collier, MPP, JD, Professional Certified Coach, is the CEO of Arudia, a firm dedicated to improving culture, collaboration and communication. She is an expert leadership coach steadfast in her commitment to excellence and her clients’ goals. She coaches and delivers programming designed to support individuals, teams and organizations in amplifying their accomplishments. With confidence, intentionality and resilience, individuals and organizations alike manifest the extraordinary as they actualize greater financial greater stability and outcomes. anne@arudia.com

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FOR YOUR PRACTICE | LITIGATION

How the Maryland Supreme Court's Decision in Katz Abosch Opens the Door to Exclusion of Experts

BY TODD W. HESEL, ESQ.

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The Supreme Court of Maryland’s watershed decision in Rochkind v. Stevenson, 471 Md. 1 (2020), overhauled the admissibility standard for expert testimony by dropping the Frye-Reed general-acceptance test in favor of the Daubert reliability test. The Court’s first civil case on the application of this new standard, Katz, Abosch, Windesheim, Gershman & Freedman, P.A. v. Parkway Neuroscience & Spine Inst., LLC, 485 Md. 335 (2023) (“Katz Abosch”), presented a choice between “two competing visions” for the treatment of an expert’s data selection. See id. at 369. One approach, which I’ll call the “hands on” approach, treats an expert’s data selection as part of the expert’s methodology and permits a trial court to closely scrutinize those choices and exclude the expert if it determines that the data selection is unsound. The other approach, which I’ll call the “hands off” approach, distinguishes data from methodology and treats the expert’s data selection as a credibility issue for the trier of fact, as opposed to a reliability issue for the court under Daubert. The Court endorsed the “hands on” approach, and that decision has significant implications for any Maryland litigator who works with or against experts who make judgment calls in data selection.

The context for Katz Abosch was an expert’s lost profits analysis using the widely accepted “before-and-after” method, which determines the loss by comparing profits calculated from a “benchmark” period before a harmful event with profits from the period after the harmful event. The plaintiff’s expert used a single year, 2015, to benchmark a medical practice’s lost profits from 2016 through 2019. The expert gave a seemingly plausible rationale for her choice, explaining that 2015 was representative of future profits because the practice had “hit its stride” that year after a period of significant expenses. But the trial court was unconvinced and excluded her in part because it thought her choice of 2015 was “speculative.”

The Appellate Court applied the “hands off” approach and reversed. It reasoned that a trial court “acts outside of its [gatekeeping] role when it second guesses the expert’s choice of data to rely on when applying the indisputably legitimate choice of methodology,” in that case, the before-and-after method. 255 Md. App. 596, 626. The expert had given a reason for her choice, “and unless the data and assumptions she made were ‘so unrealistic and contradictory as to suggest bad faith,’” which they were not, her testimony should have been admitted.

The Supreme Court, however, took the opposite view and adopted the “hands on” approach. It saw the “hands off” approach as drawing an “overly rigid” line between data and methodology, and sided with courts that “reject this sharp line and acknowledge that problems with data and

data selection . . . can bear on admissibility before the judge and not just weight before the jury.” 485 Md. at 372. Thus, the trial court acted within its discretion by excluding the plaintiff’s lost profits expert based on a perceived error of judgment in selecting the benchmark period.

Many civil cases involve lost profits calculations, and those calculations almost invariably involve judgment calls by experts in selecting the data inputs. Katz Abosch thus opens a new door for defendants to attack and potentially exclude the opinions of these experts. Moreover, there is no reason why other types of experts would be immune from the scrutiny permitted by Katz Abosch. Any expert who makes judgment calls in data selection is now potentially subject to a Daubert challenge for making the wrong choices.

To date, there are no reported civil cases applying Katz Abosch’s “hands on” approach to data selection, but this is an area for Maryland litigators to watch carefully.

For plaintiff’s attorneys used to the old Frye-Reed test, this new “hands on” version of Daubert is a major change and poses a serious risk. Simply having an expert follow an established, reliable methodology is not enough. Attorneys must ensure their experts’ data choices will withstand close scrutiny by the trial court. This means working with the expert from the beginning to ensure that any data choices are supported by a persuasive rationale that addresses why the chosen data produces a representative result.

To date, there are no reported civil cases applying Katz Abosch’s “hands on” approach to data selection, but this is an area for Maryland litigators to watch carefully.

Though trial courts clearly have license to scrutinize data choices, the amount of leash they’ll be given to do so remains uncertain. A follow-on decision pulling in the reins could bring a sigh of relief for plaintiffs, while another decision like Katz Abosch could put more wind in the sails of defendants. ____________ Todd Hesel is a Partner at Silverman, Thompson, Slutkin & White, LLC. He represents clients in the firm’s Business Litigation and Criminal Defense Groups.

He can be reached at thesel@ silvermanthompson.com.

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CAREER HIGHLIGHTS | OFF THE BEATEN PATH

Richard L. Adams, III WILMINGTON TRUST, N.A.

RISING THROUGH THE RANKS

RICHARD “RICKY” L. ADAMS, III,

didn’t follow the typical route into the legal profession. Starting as a copy clerk fresh out of high school and working his way up through the legal profession, Adams’s journey has been defined by hard work, curiosity, and a willingness to explore opportunities outside of traditional legal roles. Now a Senior Vice President and Senior Trust Officer at Wilmington Trust, N.A., his story demonstrates how a nontraditional path can lead to fulfilling and impactful work.

Photo courtesy of Travis Marshall Photography

“

I think this path helped me realize that at every junction and aspect of a case, the professionals involved have a role to play. It’s important to honor and respect the folks in those roles, for the good of the client and the legal profession at large.

Adams was introduced to the legal field at an early age by his mother.

He shared, “[She] was a legal secretary, and she used to bring me into the office sometimes. She helped me get my first job at a law firm right out of high school—as a part-time copy clerk. I remember the firm paid me an extra $.50 an hour because of my high school diploma!” That first job sent him on a trajectory that eventually led him to where he is today.

“I had the opportunity to work in this field from the bottom up, becoming a legal secretary myself, then a paralegal, and finally an attorney,” Ricky explains. “I think this path helped me realize that at every junction and aspect of a case, the professionals involved have a role to play. It’s important to honor and respect the folks in those roles, for the good of the client and the legal profession at large.”

Adams worked as an Estates and Trusts attorney for several years before joining Wilmington Trust. Stepping outside the traditional private practice model wasn’t just a career choice—it was a lifestyle decision. His position at Wilmington Trust allows him to manage the fiduciary needs of trust clients while enjoying the flexibility and stability he values. “I wanted to find a role that offered more flexibility, time with my family, and less stress around finding new clients. Working with Wilmington Trust has provided all of these things, while also providing the support and outreach of a community bank like M&T. They focus on helping communities grow, thrive, and expand. That’s something I can get behind, for sure.”

His workday varies depending on his clients’ needs, which is part of what keeps things interesting. “I could be spending my morning talking to a client about a discretionary distribution from their trust and my afternoon might involve meeting with a potential new client that is looking to hire a corporate trustee like Wilmington Trust to help ensure the success of their estate plan. It’s a very diverse job in that every day may be different based on the needs of the clients and our team.”

While Adams’ no longer practices law in the traditional sense, he is nonetheless passionate about mentoring and building relationships within the legal community. Adams is an active MSBA member, serving on the Section Council for the Estate & Trust Section and co-chairing the Membership and Outreach Committee. “We focus on strengthening the Section’s connections with the law schools in Maryland and law students. These students are our future Section members and leaders, after all,” he says.

One of Adams’s most memorable MSBA experiences took place at last year’s Legal Summit in Ocean City. He and his husband volunteered at a pizza-themed fundraiser for the Maryland Access to Justice Commission.

“Since it was a pizza theme, my husband wore a pizza costume that the MSBA purchased for him. I escorted the pizza around the room selling raffle tickets for various items for sale to benefit the fundraiser. It was a memorable and fun way to meet new folks and to help a great cause.”

Adams finds his legal expertise to be useful in non-legal arenas as well.

As the President of the Maryland LGBTQ+ Chamber of Commerce, he worked alongside businesses to strengthen Maryland’s LGBTQ+ community. “Serving in a non-legal role as a volunteer is something I recommend for other attorneys. Any non-profit would be lucky to have an attorney on their Board to review contracts, assist in negotiations, and to help assess issues in a different way,” he says.

Adams also emphasizes how legal skills—like contract analysis, problem-solving, and communication—are valuable in nearly any setting. “Being able to read and understand a contract; dissect correspondence and pick out the issues easily; and handle complex and difficult conversations with other professionals—these are all examples of skills attorneys have that are useful outside of the legal profession and the courtroom,” he notes. Through his volunteer work and leadership roles, Adams has found ways to give back to his community while using those skills to make a difference.

Looking back on his career, Adams credits much of his success to his willingness to embrace a non-traditional path. His background in gerontology and legal studies gave him a strong foundation for understanding client needs, while his early roles taught him the value of teamwork and communication. When asked about the best skills he brings to his career, Ricky points to “curiosity, determination, high ethical standards, compassion and listening, and not in that order.”

For anyone considering law school but unsure about committing to a traditional legal career, Adams has encouraging words: “I also enjoy the flexibility afforded by a legal career. For example, you can be in private practice, you can be in-house, or you can teach. The possibilities are limitless. It’s all just a tool in the toolbox. If anyone reading this is considering taking the LSATs or applying for law school but are worried they’ll be stuck in a boring job, feel free to e-mail me.”

Adams’s career shows that there’s no one-size-fits-all approach to being a lawyer. He’s carved out a career that’s as fulfilling as it is unique, and his journey proves that the road less traveled can lead to incredible places.

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FOR YOUR PRACTICE | LITIGATION

TWO PRINCIPLES FROM THE MILITARY THAT

Every Trial Attorney Should Know

BY HON. ERIK H. NYCE

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I have always wondered about decision-making and communication in our strange occupation.

Lawyers are given daunting responsibilities and free discretion in their activities. Lawyers face a tri-partite of potential adversaries—opposing counsel, the judge, and the client. The training we receive does not prepare us for what we do.

Yes—we can recite the substantive law and the rules but how do we use it in “the heat of battle” at trial? Here are two principles that will help narrow that gap.

The OODA Loop Several years ago, I ran across Colonel John Boyd’s OODA Loop while reading about military history. It would make sense that the military would develop principles on decisionmaking and communication. After all, they take 18-year-olds and give them responsibilities with serious consequences. OODA stands for OBSERVE, ORIENT, DECIDE, ACT—and repeat. Ergo the Loop.

OBSERVE seems obvious but is frequently honored in absence. The usual scenario where a lawyer fails to observe is a very well-prepared and scripted trial with no deviation from the script based on circumstances. The lawyer is head down, focused on the line-by-line list of questions. No confession or concession will redirect the presentation until the final period on the final question is concluded. “Observe” may be the most important verb in this loop. The witness stand may be the first experience with the witness on direct.

Cross-examination should account for what the witness said or did not say. It should also address their demeanor, dress, and the effect of the testimony. The most profound cross-examiners seem to find that confession or concession that other counsel were hoping was lost.

ACT happens mostly without prompt but makes sense that we have to be reminded to act. In the military and the practice of law, inaction may be worse than making a mistake.

Inaccurate judgment may result in the loss of a battle or a client. Inaction may result in the loss of the war, or the failure to preserve an objection or issue. It may also result in the loss of the attorney’s license.

The loop aspect is a reminder that we must continue to evaluate the results until the matter is concluded. The OODA loop is “worth a google.” There are numerous articles and graphics that explain and expand the principle, and it has its own Wikipedia page. But, applying this moniker will help us all be better in the heat of battle.

Lawyers are given daunting responsibilities and free discretion in their activities. Lawyers face a tri-partite of potential adversaries—opposing counsel, the judge, and the client. The training we receive does not prepare us for what we do.

ORIENT

is to use training, experience, the litigation plan, and the theme of the case during the trial. It may be a question on direct or cross. It may be an objection. It may be a gesture or expression well-timed before the jury. It may be the famous or infamous EXHIBIT 1 that every lawyer aspires to have. Orient means to be the trial lawyer during the trial.

DECIDE

is the lawyer’s next obligation. Whether the lawyer has observed and is oriented is apparent. The case may never end if the lawyer mechanically attempts to question every witness on every fact. Cross-examination always has the balance of whether it rehashes the direct or provides support for the theme. Impeachment and credibility questions may do neither.

A win or loss could be one question away. Every trial lawyer post hoc has been examined, “why didn’t you ask . . .?” The calm, quick response is, “I decided . . .”

Bottom Line Up Front—BLUF Mark Twain once famously wrote “I apologize for such a long letter—I didn’t have time to write a short one.”

BLUF

is a communication dictate that provides that the most important information should be provided up front. This in inapposite to the deductive reasoning approach where the general ideas and facts are discussed to form a conclusion—usually at the end.

The US Army’s Soldier’s Guide, TC 7121.13 under Soldier’s Tools, 9-8. Communication Skills advises: “Using the mnemonic BLUF (Bottom Line Up Front) will help ensure your message meets [the communication objectives.]” Anyone who has sat in a crowded courtroom watching a lawyer, or witness, provide a historical narrative beginning with “I was born” will concur with that sentiment. I could continue with this discussion, however that would violate the rule.

Lawyering is no easy task. But, by practicing OODA and BLUF, we can all be better in the courtroom.

____________ Hon. Erik Nyce is a judge with the District Court of Maryland in Prince George’s County.

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FOR YOUR PRACTICE | ESTATE PLANNING

Advance Directives: Drafting and Implementation

BY ALLISON R. CLAPP, ESQ., AND ASHLEY LANZEL, M.D., M.A.

An Advance Directive is a legal document that enables an adult client to (1) name one or more individuals as the client’s agent(s) or attorney(s)-in-fact to make health care decisions on the client’s behalf, and (2) specify the client’s wishes with respect to his or her health care in certain circumstances.

Advance Directives present a unique set of challenges for a lawyer who is experienced in drafting legal documents and advising about legal matters but who may have little knowledge or experience regarding medical issues.

Because of the dual nature of this document as both a legal document and a medical document, the authors have joined together to combine their respective legal and medical knowledge in order to provide practical advice regarding how best to clients’ interests in this important arena. This article will provide specific drafting tips for lawyers as well as recommended steps the client should take after signing an Advance Directive.

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The determination of who should serve as the client’s agent is arguably the most important part of the Advance Directive.

DRAFTING TIPS Include contact information for the named agents.

The determination of who should serve as the client’s agent is arguably the most important part of the Advance Directive. Be sure that the Advance Directive contains sufficient information so that the agent can be located when the client may be incapacitated and unable to provide such information. If possible, include multiple avenues for contacting the agent (such as a cell phone number, home phone number, home address) to ensure that physicians are able to communicate with the agent when the time comes.

A document that is overly specific about how to act in certain circumstances may tie the agent’s hands in being able to make the decision that is truly most consistent with the client’s wishes.

Sometimes, “Less is more.”

As long as the client trusts his or her agent, be careful to draft in a way that gives the agent discretion to make the best decision at the relevant time. A document that is overly specific about how to act in certain circumstances may tie the agent’s hands in being able to make the decision that is truly most consistent with the client’s wishes. Most forms provide the option to include language specifying the client’s health care preferences in certain circumstances. In addition to such language, consider including language giving the agent authority to override those specifications at the time of decision if the agent believes that doing so would be most consistent with the principal’s best interests.

Sample language: I recognize that I cannot foresee everything that might happen or all options that may be available when I am incapable of making medical decisions for myself. My preferences stated in this [Section reference] are meant to guide my attorney-in-fact and my health care providers in making decisions on my behalf. It is my intent that my attorney-in-fact and my health care providers follow my stated preferences if my attorney-in-fact and my health care providers believe that doing so is in my best interest, but my attorney-in-fact shall have the discretion to make the decisions that my attorney-in-fact believes to be in my best interest at the relevant time regardless of what is otherwise stated in this [Section reference].

However, if the client is strongly in favor of or opposed to a particular course of treatment, it can be beneficial to spell that out specifically.

The client may have strong convictions or opinions with respect to certain treatment options, and these preferences should be considered when drafting the Advance Directive. For instance, if your client is a Jehovah’s Witness and has a religious objection to receiving a blood transfusion, consider specifying that prohibition in the document. If the client believes there is some risk that his or her agent will have a different view of the client’s best interest, consider including language mandating that the agent specifically follow the written wishes.

Sample language: It is my desire that my attorney-in-fact and my health care providers follow my preferences stated in this [Section reference] exactly as written, even if my attorney-in-fact and/or my health care provider believes that some alternative is better.

Remember that an Advance Directive is important even if the client wishes to name his or her closest family members as decisionmakers.

If no Advance Directive has been signed, state law generally will fill the gap by providing an order of priority for surrogate decisionmakers on behalf of the incapacitated person (e.g. the person’s guardian, if any; followed by close family members, etc.). However, these individuals may have, or may be perceived to have, less authority to make decisions than a named agent MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3

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and may be limited in the range of their discretion. In contrast, a properly drafted Advance Directive can enable the specified health care agent to have the same broad right to consent to and refuse treatment as the principal would.

Further, an Advance Directive allows the client to specify his or her preferred decisionmaker(s), even if such decisionmakers are different from the statutory default. For instance, a client who is part of a blended family may wish to name his or her adult children ahead of or together with his or her spouse. A client who is unmarried but part of a long-term relationship may wish to name his or her partner to participate in his or her health care decisions. However, even if the client wishes to name the same individual as would have legal priority under the statute, taking the step to name him or her in the Advance Directive can give more weight to the agent’s authority by proving that this truly corresponds with the principal’s wishes, especially if there is disagreement among loved ones as to the proper treatment.

Make sure the document is clear about whether the named agents act successively or concurrently. If multiple agents are appointed to act concurrently, be sure to specify whether they must act unanimously or whether either may act alone.

If multiple decisionmakers are named, specify how or in what order they may act.

Make sure the document is clear about whether the named agents act successively or concurrently. If multiple agents are appointed to act concurrently, be sure to specify whether they must act unanimously or whether either may act alone. If the client has an individual whom he or she wishes to be part of the conversation but not actually to have legal decision-making authority, consider expressing a non-binding preference that such individual be consulted by the agent. If there is someone whom the client wishes to play no role in his or her health care decisions, consider adding a paragraph stating that such individual is disqualified from participating in health care decisions on behalf of the principal.

Consider the effective date and durability of the Advance Directive.

For the sake of administrative convenience, it may be simplest to make the Advance Directive effective immediately, subject to the ability of the client to make his or her own health care decisions if he or she has capacity. Alternatively, the client may wish for the document to be “springing” with respect to the health care power of attorney, which would require the additional step of a certification by physicians of the client’s incapacity before the named agent(s) would have authority to access confidential health care information or make health care decisions on behalf of the client.

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Since one of the goals of an Advance Directive is to allow the named agent(s) to make health care decisions if the client is incapacitated, be sure to state that the document is durable, i.e. that it is still legally binding even following the client’s incapacity.

Organ donation It is not strictly necessary to specify a preference regarding organ donation in a client’s Advance Directive, but it is a good idea to do so. The client may have the opportunity in his or her state to specify his or her wishes via a state organ donation registry or on his or her driver’s license. Further, even if the individual’s driver’s license and Advance Directive are silent, family members may be able to consent to organ donation on the patient’s behalf where relevant. However, making a statement as to the client’s wishes in the Advance Directive can provide an added level of clarity and put his or her wishes beyond doubt. The Advance Directive also allows for a greater degree of flexibility to specify the range of purposes for which the client wishes the organs to be used, which organs he or she would like to donate, etc. Further, if the client has decided against organ donation, it may be advisable to specify that wish in his or her Advance Directive to ensure that such preference is complied with.

Pregnancy For women of childbearing age, consider including a statement as to whether the client’s expressed preferences regarding life-sustaining procedures still apply if she is pregnant at the time.

Many clients who otherwise would not wish to receive life-sustaining interventions may wish to be kept alive if pregnant with a reasonable chance of the baby being born healthy. Although thankfully rare, when these situations arise, they can result in difficult decisions for the hospital’s ethics committee balancing the interests of the unborn baby with the expressed wishes of the mother. These difficulties can be mitigated or avoided by a clear statement that the individual wishes to be kept alive for the sake of finishing out the pregnancy. Note that state abortion laws may be interpreted as placing a limitation on the degree of discretion for the mother in some situations. In a situation where abortion would be illegal, physicians may determine that they are not permitted to terminate life support if that would result in the termination of the life of the unborn child.

Sample language: Notwithstanding my previously stated preferences, if I am pregnant then I direct that all life-sustaining treatment be continued during my pregnancy where there is reasonable hope of my child being born healthy.

Consider whether other documents should be signed in addition to the Advance Directive.

Advance Directives frequently contain an authorization to disclose protected medical information to the agents named in the document. However, the client may wish for this authorization to be broader. A client with a springing health care power of attorney under the Advance Directive may wish for certain individuals to have immediate access to medical records. In light of these realities, consider having your client sign a Health Insurance Portability and Accountability Act (HIPAA) authorization consenting to the disclosure of protected medical information to trusted individuals such as a spouse, partner, parents, and/or adult children.

Additionally, a client with a terminal condition may wish to sign a Physician Orders for Scope of Treatment (POST), Physician Orders for Life Sustaining Treatment (POLST), or Medical Orders for Life Sustaining Treatment (MOLST) form or, if applicable, a health care order about resuscitation, such as Do Not Intubate (DNI) or Do Not Resuscitate (DNR). These forms must be completed with the client’s physician (or, in some states, nurse practitioner or physician assistant), not the client’s lawyer, but you may wish to make the client aware of such forms and recommend that he or she speak with his or her physician about any additional forms that may be recommended.

PRACTICAL STEPS CLIENT SHOULD TAKE AFTER SIGNING Provide signed Advance Directive to health care providers.

Encourage your client to provide a copy of his or her signed Advance Directive to his or her primary care physician and any other doctors he or she sees regularly. This is the best way to ensure that his or her physician is aware of the document and has ready access, and may also serve as a starting point for a conversation with his or her primary care provider about other relevant forms.

The client (or his or her physician) may be able to upload the document to an online chart so that it is more easily shared among all the client’s health care providers.

Have a conversation with his or her named health care agent(s).

Even more important than laying out the client’s wishes in the Advance Directive is ensuring that the client has discussions with his or her agent(s) to explain what the client’s wishes would be in various circumstances. These conversations can provide more detail than is possible to write into a

document and can provide the agent with peace of mind that he or she is following the client’s specific wishes should the agent ultimately need to make medical decisions on behalf of the client.

The client should be sure that his or her agent(s) know that they are named as decisionmakers in the Advance Directive and know where to locate a copy of the document.

Consider having a conversation with other family members.

Especially if the client has made a decision that may be unexpected about who to name as the client’s health care attorney-in-fact (e.g. bypassing a close family member) or has a preference regarding various medical interventions that other family members may not share, it can be helpful to break the news ahead of time so that family members are prepared at the time that the Advance Directive is utilized. This procedure may help to avoid contention and familial strife when medical decisions are being made in the future and can help to ensure that the client’s wishes are followed.

Revisit the Advance Directive regularly in order to confirm that it still reflects current wishes.

Although an Advance Directive does not “expire,” agents and medical professionals may be less certain that a very old document still reflects the client’s current wishes, especially if there have been major life changes in the interim. An old document will not be disregarded merely for being old. However, in the case of passage of time or changed life circumstances (e.g. a document that names an ex-spouse), the issue may have to go to the hospital’s ethics committee to determine whether the document reflects the patient’s current wishes.

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Revoke an outdated Advance Directive, and inform anyone aware of the prior document that it has been revoked and/or superseded.

An Advance Directive generally may be revoked by a written document (including a revocation contained in a superseding Advance Directive). If the Advance Directive is revoked, make sure that the client informs his or her agents, physicians, or others who previously may have been made aware of the old document, so that there is no confusion about whether the document continues to be valid.

CONCLUSION An Advance Directive is an important component of a client’s estate plan, and it often does not get the attention that it deserves. Indeed, many clients may care more deeply about the health care decisions made on their behalf during their lifetime than about the disposition of their property after their death.

Estate planning attorneys would do well to educate themselves about the issues surrounding Advance Directives and to initiate careful and thorough conversations with clients about these life-and-death issues.

____________ Allison R. Clapp is an associate at Stewart, Plant & Blumenthal, LLC, in Baltimore, Maryland, and practices in the area of trusts and estates. Ms. Clapp is a member of the ABA Real Property, Trust and Estate Law Section and Taxation Section.

Ashley F. Lanzel is a palliative care specialist at Children’s National Hospital, where she also serves as the Associate Program Director of the Hospice and Palliative Medicine Fellowship. Dr. Lanzel has a Master of Arts in bioethics and has focused her research on decision-making, communication, palliative oncology, and pediatric palliative ethics.

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The Silent Epidemic of Bullying

IN THE LEGAL PROFESSION

BY COLLEEN M. ARACRI, ESQ.

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BULLYING IN THE LEGAL PROFESSION IS NOT SIMPLY INCIVILITY; IT INVOLVES REPEATED, INTENTIONAL BEHAVIOR THAT INTIMIDATES, HUMILIATES, OR UNDERMINES ANOTHER PERSON, OFTEN EXPLOITING POWER DYNAMICS. Addressing Bullying in the Legal Profession In the high-pressure world of legal practice, the line between demanding quality work and harmful behavior often blurs, contributing to an enduring issue: workplace bullying. The Illinois Supreme Court Commission on Professionalism recently conducted a groundbreaking study on bullying in the legal profession.1 This study provides critical insights into how bullying affects lawyers’ well-being, professional satisfaction, and the public’s perception of justice. All attorneys can draw valuable lessons from this report, particularly as we aim to foster supportive and balanced legal workplaces.

The Scope of the Problem Bullying in the legal profession is not simply incivility; it involves repeated, intentional behavior that intimidates, humiliates, or undermines another person, often exploiting power dynamics. Verbal abuse, unrealistic demands, exclusion, and even physical aggression were reported by 24% of Illinois lawyers in a single year, with many incidents remaining unreported due to fear of retaliation or perceived futility. 2 Bullying in the legal profession is alarmingly common. In Illinois, 24% of surveyed attorneys reported being bullied in the past year, and 13% experienced repeated bullying.3 The report identifies common forms of bullying:

● VERBAL INTIMIDATION: Insults, name-calling, and shouting.

● HARSH CRITICISM: Excessive and belittling feedback.

● UNREALISTIC WORK DEMANDS: Imposing unmanageable workloads.

● EXCLUSION: Withholding vital information or opportunities.4

While these behaviors are harmful in any context, they are particularly damaging in high-pressure environments where collaboration and trust are critical.

Disproportionate Impact The study highlights how bullying disproportionately affects certain demographics. Certain groups face bullying at higher rates. Women attorneys are bullied at more than double the rate of their male counterparts—38% versus 15%.5 Minority lawyers, particularly Black (35%), Hispanic (34%), and Middle Eastern/North African (36%) attorneys, also experience disproportionately high rates.6 For LGBTQ+ lawyers, the statistics are equally troubling: 29% of gay or lesbian attorneys and 46% of bisexual attorneys reported being bullied, with verbal harassment related to sexual orientation being a significant issue.7 Younger lawyers (ages 25–35) are the most vulnerable, with 39% reporting bullying in the past year. Conversely, older attorneys (66 and above) also face unique challenges, often targeted for their age or perceived obsolescence.8

Systemic Barriers to Reporting Despite its prevalence, bullying often goes unreported.

Only 20% of those bullied reported the incidents to their employers, and the response was often insufficient or dismissive. Lawyers feared being labeled as weak or unfit for the profession, perpetuating a culture of silence.

Those who did report often found that their concerns were inadequately addressed, with only 22% of employers committing to take action against the bully.9

The Impact on the Profession Bullying takes a severe toll on attorneys and their organizations.

54% of bullied lawyers reported emotional distress, including anxiety and loss of confidence. 20% experienced physical health declines.10 Remarkably, 18% left their jobs due to bullying.11

1 https://civility.wpenginepowered.com/wp-content/uploads/2024/10/2Civility_BullyingReport_Full_FN.pdf 2 Id. pp 24-255.

3 Id. p 24.

4 Id. pp 24-25.

5 Id. p 27.

6 Id. p 31.

7 Id. p 30.

8 Id. p 34.

9 Id. p 12, 41.

10 Id. p 12.

11 Id. p 12.

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Beyond individual harm, bullying erodes organizational culture and public trust. High turnover, reduced morale, and impaired collaboration are common in toxic workplaces. Additionally, the normalization of such behavior undermines the justice system’s integrity, as lawyers are expected to uphold principles of equality and dignity. 12

Recommendations for Change To combat bullying effectively, legal workplaces must adopt a proactive, systemic approach. The Illinois report provides a roadmap with actionable recommendations:

ANTI-BULLYING POLICIES Legal workplaces should implement clear policies defining bullying, outlining reporting procedures, and detailing consequences for violators. Policies must go beyond traditional anti-harassment frameworks, addressing power imbalances and retaliatory behaviors.13

TRAINING AND EDUCATION Organizations and law schools should provide targeted training to educate attorneys on recognizing and addressing bullying. Training should equip lawyers to intervene as bystanders and support colleagues who experience bullying.14

ONLY 20% OF THOSE BULLIED REPORTED THE INCIDENTS TO THEIR EMPLOYERS, AND THE RESPONSE WAS OFTEN INSUFFICIENT OR DISMISSIVE. LAWYERS FEARED BEING LABELED AS WEAK OR UNFIT FOR THE PROFESSION, PERPETUATING A CULTURE OF SILENCE.

JUDICIAL ACCOUNTABILITY Courts should adopt standing orders addressing bullying and incivility. Judges should receive training on identifying and addressing misconduct, ensuring that courtrooms are spaces of dignity and respect.15

BAR ASSOCIATION INITIATIVES Bar associations can play a pivotal role by offering resources, such as model policies and toolkits, and hosting continuing legal education (CLE) programs on bullying prevention. Peer mentoring programs can provide critical support to affected attorneys.16

CULTURAL CHANGE Ultimately, preventing bullying requires a cultural shift within the legal profession. Leaders must model civility, prioritize inclusivity, and hold perpetrators accountable. This starts with acknowledging that bullying is incompatible with the values of justice and equity.

12 13 14 15 16

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Id. p 16, 53.

Id. p 13.

Id. p 13.

Id. p 13.

Id. p 14.

MEMBER SPOTLIGHT | IN MEMORIAM

Remembering

Judge John McAuliffe MSBA mourns the loss of the Honorable John Francis McAuliffe, a distinguished jurist, renowned trial lawyer, and devoted public servant who passed away peacefully at his home in Germantown, Maryland, on October 25, 2024, at the age of 91.

Born on November 4, 1932, in Washington, D.C., to Colonel James S. McAuliffe and Grace Morningstar McAuliffe, Judge McAuliffe was deeply rooted in Montgomery County, where he resided throughout his life.

A Life Devoted to the Law Judge McAuliffe’s legal journey began after graduating from Bethesda-Chevy Chase High School and earning his J.D. from American University’s Washington College of Law in 1955. Following his service in the U.S. Army, John returned to Montgomery County, where he became a respected trial lawyer, practicing with the firms Fairbanks, Heeney & McAuliffe and later Heeney, McAuliffe & McAuliffe alongside his brother, Judge James S. McAuliffe, Jr. Known for his brilliant legal mind and unmatched trial skills, Judge McAuliffe was appointed to the Montgomery County Circuit Court in 1972, where he served with distinction for 13 years. In 1985, he was elevated to the Maryland Court of Appeals (now the Maryland Supreme Court), earning accolades for his sharp intellect, fairness, and dedication to justice. He retired in 1993 but continued to serve as a senior judge, providing judicial assistance until his full retirement in 2022.

A Legacy of Leadership and Teaching Judge McAuliffe was not only a jurist of the highest caliber but also a gifted teacher and mentor. He shared his expertise as a faculty member at the National Judicial College and an adjunct professor at his alma mater, the Washington College of Law at American University. His commitment to shaping the future of the legal profession was evident in his work with the Maryland Rules Committee, where he played

a key role in rewriting the Maryland Rules of Procedure, leaving a lasting impact on the state’s judicial system.

A forward-thinking leader, Judge McAuliffe was ahead of his time in hiring women and minorities as his law clerks, embodying the principles of inclusion and equality. His colleagues and students alike admired his sharp wit, resonant voice, and warm demeanor, which combined to make him a beloved figure in the legal community.

Remembering an Icon Upon his retirement, Chief Judge Robert C. Murphy aptly described Judge McAuliffe as “one of the most remarkable lawyers and jurists I have ever known. He is a man of the most outstanding ability, and if you asked 100 lawyers and judges, they would tell you the same thing.” Judge McAuliffe’s legacy is one of excellence, integrity, and unwavering commitment to the rule of law.

He is survived by his children, John (Lina) McAuliffe and Mary (Paige) Wood, his grandchildren, Hannah (Brad) Smith, Margaret Shows (Josh Conrad), John McAuliffe, and Kathryn McAuliffe, and his great-grandchildren. His legacy will live on in the countless lives he touched and the profound impact he had on the Maryland legal community.

Judge John McAuliffe was truly one of a kind. He will be deeply missed and fondly remembered as a brilliant jurist, a dedicated teacher, a loving family man, and a cherished friend.

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Remembering

Edward J. Gilliss MSBA mourns the loss of Edward J. Gilliss, a leader, mentor, and f riend who left an indelible mark on the legal profession in Maryland. A past president of the MSBA (2006–2007) and an active member for decades, Ed’s legacy is one of service, professionalism, and unwavering dedication to the law and his community.

A Life of Leadership and Service Gilliss’s contributions to the MSBA are both extensive and enduring.

Before serving as president, he held numerous leadership roles, including Treasurer from 2003–2005. More recently, he lent his expertise to the Bylaws Committee and Strategic Implementation Committee, both charged with modernizing the MSBA to better serve the legal profession in Maryland. His efforts were instrumental in shaping the organization’s governance and role in an ever-evolving profession.

A partner at the Towson-based law firm Royston, Mueller, McLean & Reid, LLP, Gilliss built one of the most respected practices in Baltimore County, specializing in litigation, land use, and estate planning and administration. His career reflected a deep understanding of both the legal and civic landscapes, which he leveraged to serve clients and the community alike. From representing corporate entities and restaurants to advising on zoning and real estate development, Ed approached his work with skill, integrity, and an unwavering commitment to excellence.

The Heart of a Servant Leader Beyond his professional achievements, Gilliss embodied the qualities of a servant leader. Whether in the courtroom, in bar association meetings, or in the broader community, Gilliss’s focus was always on serving others.

His years as Baltimore County Attorney (2001–2004) and as Chair of the Baltimore County Planning Board (2008–2013) and School Board (2016–2018) stand as a testament to his dedication to the public good.

Gilliss’s leadership during challenging times was exemplary. As Chair of the School Board, he guided the board through the turbulence of a national movement to politicize school boards. Despite these pressures, Ed maintained focus on academic outcomes, supporting educators, and advancing equity. His calm and decisive leadership set a high standard for others to follow.

keeping lawyers well-trained and keeping the courts independent?” he remarked. His presidency left an enduring legacy of support for professional growth and the rule of law.

For Gilliss, the MSBA was more than an organization—it was a community.

He frequently spoke of the value he derived from connecting with colleagues across the state, sharing professional and personal experiences, and advancing the positive role of lawyers in society.

His advice to those considering leadership within the MSBA was simple and heartfelt: “All lawyers should feel welcome to join in at any level of participation. Only good things will follow.”

A Life Well-Lived Gilliss’s life extended far beyond his professional accomplishments.

He was a devoted husband to Barbara, a loving father to his three sons, and a doting grandfather. He took immense joy in family life, spending time with his grandchildren and embracing every opportunity to make memories with loved ones.

Gilliss’s humility and kindness touched everyone who knew him.

Colleagues describe him as a “true gentleman,” a mentor, and a steady presence whose wisdom and grace were unparalleled.

Gilliss’s impact on the MSBA, the legal profession, and the community at large is immeasurable. His work with the MSBA strengthened the organization and elevated its role as the voice of Maryland’s legal community. His professional achievements set a standard for excellence and integrity. His personal warmth and generosity left a lasting impression on all who had the privilege of knowing him.

Reflections on His MSBA Presidency

Gilliss often said that being part of the MSBA made him a better lawyer and counselor for his clients. In turn, his contributions made the MSBA a stronger organization and the legal profession a better place. As we honor his memory, we are reminded of the profound influence one individual can have on their profession, community, and the lives of others.

As MSBA President, Gilliss addressed critical issues such as bolstering continuing legal education and safeguarding judicial independence.

Reflecting on his term, he described these as some of the profession’s most vital missions. “What better missions are there than

Gilliss exemplified what it means to lead with purpose, serve with humility, and live with integrity. The MSBA extends its deepest condolences to his family, friends, and colleagues. His legacy will continue to inspire generations of Maryland lawyers.

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Remembering

Herb S. Garten With deep sorrow and profound respect and gratitude, MSBA remembers Herbert S. Garten, a distinguished attorney, tireless advocate for equal justice, and a guiding force in the legal community. Garten passed away on January 28, 2025, at the age of 96, leaving behind a remarkable legacy of service, leadership, and unwavering belief in the power of law to uplift lives.

Garten was an active and influential MSBA member, serving as President from 1989 to 1990. His leadership shaped the Bar’s role in advocating for legal professionalism and expanding access to justice.

Beyond his presidency, Garten served on the Board of Governors and Executive Committee, chaired numerous MSBA committees, and played a pivotal part in shaping the association’s direction. His dedication to legal history was evident in his work as Chair of the Special Committee on the MSBA’s Centennial from 1994 to 1996 and his authorship of the preface to the MSBA’s 125th-anniversary commemorative book.

Garten’s contributions extended well beyond professional leadership.

He was a commissioner on the Access to Justice Commission and widely recognized as the "Father of Pro Bono in Maryland," dedicating his life to ensuring that access to legal representation was not a privilege, but a right. He was instrumental in creating a structure that enabled attorneys to provide free legal services to those in need, as it was through his vision and leadership as President of the MSBA that the Pro Bono Resource Center of Maryland (PBRC) was founded in 1990. His commitment to pro bono work was not just theoretical—it was deeply personal. Throughout his career, he took on numerous cases pro bono, advocating for homeowners, low-income families, and individuals denied access to fair representation.

Garten’s impact reached a national stage. From 1994 to 2003, he chaired the Maryland Legal Services Corporation, ensuring funding for civil legal aid programs across the state. Recognizing his tireless advocacy, President George W. Bush nominated him in 2003 to the Board of the Legal Services Corporation (LSC), the federal entity responsible for ensuring legal aid for low-income Americans. His appointment was confirmed by the U.S. Senate, and he continued to serve as a member of LSC’s Institutional Advancement Committee, strengthening national pro bono initiatives.

His advocacy was not confined to boardrooms—he worked on landmark legal cases that shaped national policies. One of his most notable victories was his eleven-year battle against the IRS and Social Security Administration to secure clergy tax recognition rights for cantors, a case that established an important precedent still in place today.

Beyond his legal work, Garten was a deeply engaged community leader, educator, and philanthropist. In addition to being an accomplished attorney, he was a certified public accountant and a law school lecturer in federal taxation law. He served as general counsel for several national organizations and was a guiding force for religious institutions, universities, and civic groups. His leadership extended to serving as president of the Towson State University Foundation, president of the Baltimore chapter of the American Jewish Committee, and co-chair of the National Conference of Christians and Jews.

Throughout his lifetime, Garten was widely recognized for his contributions. He received a Fellows Award from the National Conference of Bar Presidents, The Daily Record’s Leadership in Law Award, the Benjamin L. Cardin Pro Bono Service Award from the University of Maryland, and the Kavod Award from the Cantors Assembly. In 2004, the Maryland Legal Services Corporation established an award in his name, ensuring that his dedication to legal access and service lives on.

Garten’s passion for justice was matched only by his kindness and warmth. He was known for his wit, generosity, and boundless energy, always eager to mentor young attorneys and encourage them to embrace pro bono service. He believed that pro bono work not only benefited clients but made lawyers better practitioners, broadening their perspectives and deepening their commitment to the law.

Above all, Garten was a devoted family man. He is survived by his children, Alan, Ilene, and Maury Garten, his grandchildren, great-grandchildren, and countless colleagues and friends whose lives he touched. He was predeceased by his beloved wife of 69 years, Susan Garten (née Fedder), and his children, Lynne and Lawrence Garten.

In honor of his extraordinary legacy, contributions in his memory may be made to The Maryland Pro Bono Resource Center or The Associated: Jewish Federation of Baltimore.

Garten’s life was a testament to the power of the law as a force for good.

He dedicated himself to ensuring justice for all, mentoring generations of legal professionals, and strengthening the institutions that safeguard civil rights. His impact will be felt far beyond the courtroom, in the lives of the countless individuals and communities he helped.

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ETHICS | ETHICS OPINION

Maryland State Bar Association, Inc.

Committee on Ethics MSBA ETHICS OPINION 2024-04 CONFLICT OF INTEREST IN THE CONTEXT OF SUCCESSIVE FEDERAL EMPLOYMENT

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QUESTION PRESENTED: 1. Do Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.9 and/ or 1.11 apply where a bar member formerly worked as an attorney representing a client but is not currently doing so?

2. Do MLRPC 1.9 and/or 1.11 apply where the former employer and the current employer have some indicia of independence from one another but are fundamentally two parts of the same branch of the same government?

3. My relevant work for my former employer consisted of advocacy in public rulemakings conducted by my current employer, which concern policy aspects of the system for regulating [certain] rates.

My advocacy involved abstract legal and economic principles, publicly known facts, and other facts that my former client has disclosed to my current employer. In such circumstances, do the rulemakings comprise “matters” for purposes of MLRPC 1.9 and/or [1].11, such that I would be precluded from providing legal representation to my current employer concerning the rulemakings?

CONCLUSION: Each query can be answered simply, but when applied to the facts, those answers don’t really give you much guidance. We will try to both answer your specific questions and provide guidance.

Yes, Rule 1.11 and by the terms of that Rule, Rule 1.9 apply to your work with your new employer as you are a current government official, which Rule 1.11 expressly covers.

As to Question 2, the Committee believes that based on your description, you were the attorney for a specific agency, not the organization of which each agency is a part, and the agencies are distinct entities and must be treated as such by the Rules. As to Question 3, Rule 1.11 clearly defines a “matter” for its purposes as covering “a request for a ruling,” which we believe covers advocating before an agency for a specific rule; the Committee views advocating before a rule-making body on behalf of a client to be different from participating in the rule-making for a client that makes the rules which other

ethics committees and we believe would not preclude an attorney from future representation of clients challenging the rule under many factual situations. As to advising the rule-maker, Rule 1.11 would not cover the activity as “a request for a ruling” whereas, representing a client in proceedings before the body seeking to have that rule maker either adopt, amend, or decline to adopt a specific rule seems to fall within the ambit of Rule 1.11 requesting “a ruling.”

one in which you were involved personally and substantially as counsel.

BACKGROUND: You have asked several questions related to your employment with a government agency in a non-attorney capacity. The genesis of your request flows from your previous

(1) is subject to Rules 19-301.7 (1.7) and 19-301.9 (1.9); and

DISCUSSION/ANALYSIS: Rule 1.11(d) applies to attorneys who are serving as officers or employees of the government regardless of their role: (d) Except as law may otherwise expressly permit, an attorney currently serving as a public officer or employee:

(2) shall not: (A) participate in a matter in

As to Question 3, Rule 1.11 clearly defines a “matter” for its purposes as covering “a request for a ruling,” which we believe covers advocating before an agency for a specific rule; the Committee views advocating before a rule-making body on behalf of a client to be different from participating in the rulemaking for a client that makes the rules which other ethics committees and we believe would not preclude an attorney from future representation of clients challenging the rule under many factual situations. employment with another government agency subject to regulatory authority and oversight by your current employer. Both agencies are part of the same government and have many commonalities, but are nevertheless, separate entities. Counsel for your current employing agency opines that the Maryland Lawyer Rules of Professional Conduct bar you from engaging in providing advice to your current employer’s board chair for whom you work or from participating in a rule-making process because the rule-making is one in which you advocated for your previous employer and

which the attorney participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (B) negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the attorney is participating personally and substantially, MARYLAND BAR JOURNAL | VOLUME 6 ISSUE 3 119

except that an attorney serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted

by Rule 19-301.12 (b) (1.12) and subject to the conditions stated in Rule 19-301.12 (b) (1.12).

Rule 1.9 may affect whether you can act to advise your employer on matters where doing so would involve using information not generally known to the public gained in the prior representation to the disadvantage of the former client or where you would be disclosing confidential information.

Neither Rule 1.11(d)2 (A) or (B) apply to your situation; however, Rule 1.11(d)(1) does.

Specifically, the conflict rules of both Rule 1.7 and Rule 1.9 apply. Within Rule 1.11, the references to Rule 1.9 differ in subsections (a) and (d). In the former Rule 1.9(c) applies; whereas in the latter Rule 1.9 as a whole applies as does Rule 1.7 (the general conflict Rule). Thus, subsection (d) applies Rules 1.9 and 1.7 to government officials, regardless of whether they are representing a client in their official capacity.

Rule 1.9 provides in pertinent part: (c) An attorney who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Rule 1.7 provides: (a) Except as provided in section (b) of this Rule, an attorney shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients 120

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will be materially limited by the attorney’s responsibilities to another client, a former client or a third person or by a personal interest of the attorney. (b) Notwithstanding the existence of a conflict of interest under section (a) of this Rule, an attorney may represent a client if: (1) the attorney reasonably believes that the attorney will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the attorney in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

Rule 1.7 discusses responsibilities when an attorney “represents” clients in conflict with one another, etc.; so, should you switch to a role of attorney representing the Commission, rule 1.7 would affect whether you could represent the Commission in matters involving your former client. However, as in prior opinions, the determination of the extent of the limitations depends upon specific facts that only the inquiring attorney knows, and the attorney’s evaluation of those facts must govern the attorney’s conduct. Rule 1.7 does not specifically apply to government officials who are not acting as lawyers for the government because that Rule only addresses conflicts while representing

clients, not while serving as a government official. But, as we discuss below, Rule 1.9 may affect whether you can act to advise your employer on matters where doing so would involve using information not generally known to the public gained in the prior representation to the disadvantage of the former client or where you would be disclosing confidential information.

By virtue of the combined effect of Rules 1.9 and 1.11, the Committee observes that having participated as the attorney for a client advocating over a proposed rule that was held in abeyance, you likely have confidential information gained in your prior representation regarding strategy and possibly other work product information beyond information that is “generally known.” The ABA Formal Opinion 479 discusses the distinction between information available to the public and information that is “generally known.” In that Opinion, the ABA stated that: Consistent with the foregoing, the Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or

other resource in the particular field.

Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. * * *

accrue to the other client by reason of access to confidential government information about the client’s adversary obtainable only through the attorney’s government service…”. [Italics supplied.]

Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c) (1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).2. (Footnotes omitted.)

You point to language in Rule 1.11 Comment 5 discussing movements between government clients and point to the language discussing movements between different governments, rather than within the same government as indicative of why the Rule should not apply in your case as it discusses shifts between different governments, not within the same government. In many instances that would be true and in your situation the Committee believes would be true if your client had been the government itself, rather than a specific entity of that government. Based on the facts you provided, your client was a specific entity or agency of the government and not the government itself. Comment 5 directs us to Rule 1.13 Comment 8 to consider how the Rule might apply. That Comment clarifies a distinction when identifying the client and recognizes that an attorney may represent a specific agency or official, a branch of government, or the government as a whole.

Our Committee agrees. For that reason, to the extent that you hold knowledge not generally known and gained through your prior representation of your client, you cannot use that information to the disadvantage of the former client.

Determining whether you have that information and how it might be used to disadvantage your former client must be left to your judgement in the first instance, and the Committee cannot decide that for you.

Comment 4 to the Rule 1.11 provides apt language regarding your situation, which the Committee believes makes clear that the Rules were intended to cover your situation: “. . . On the one hand, where the successive clients are a government agency and another client, public or private, the risk exists that power or discretion vested in that agency might be used for the special benefit of the other client. An attorney should not be in a position where benefit to the other client might affect performance of the attorney’s professional functions on behalf of the government. Also, unfair advantage could

Government Agency--[8] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such attorneys may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [18]. Although in some circumstances the client may be a specific agency, it may also be a branch of government, such as the executive branch, or the government as a whole.

For example, if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part of the relevant branch of government may be the client for purposes of this Rule….

Because you represented a specific agency of the government and have switched to a companion agency, the Committee believes that Rules 1.9 and 1.11 apply to prevent you from acting for the new agency on a matter

(the rule which was held in abeyance) in which you participated personally and substantially, if doing so would disadvantage your former client should you use information not generally known to the public in advising your employer. The Committee believes this to be true both while you hold your current employment and if, in the future, you act as an attorney representing the Commission in which case Rule 1.7 would also apply.

The Committee agrees with you and the court in Texas vs. Biden, 570 F. Supp. 3d 398, 405 (N.D. Tex. 2021) when it distinguished matters that arise after an attorney leaves employment with a client and which are distinct from the matters within the prior representation. So, for example, should the Commission determine to pursue rule-making affecting your former client, you would not be prohibited from participating on behalf of the Commission as a public employee or official.

Similarly, Rule 1.7 and Rule 1.9 would not act to preclude you from acting as an attorney for the Commission unless you had information about your former client not “generally known” that you use to disadvantage your former client. The limitation applicable to you as a public employee or official in Rule 1.11, the Committee views as applying only to the rule held in abeyance and only to the extent that you have information regarding your former client’s advocacy regarding that rule not “generally known” or you have other information about your former client that could be used to its disadvantage.

We hope this response is helpful. Thank you for contacting the Committee on Ethics.

Very truly yours, MSBA COMMITTEE ON ETHICS REFERENCES: RULES CITED • MARPC 19-301.7 • MARPC 19-301.9 • MARPC 19-301.11 • MARPC 19-301.13 • Cases cited • Ethics Dockets cited • ABA Formal Opinion 479 • Other authority cited

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STAFF PROFILE | JAMAL ADJAMAH

Jamal Adjamah GRAPHIC DESIGNER Jamal Adjamah joined MSBA as a graphic designer in February 2024. A Miami native, Adjamah discovered his passion for graphic design while studying kinesiology at Jacksonville University, where he worked as a graphic designer for the athletics department. Since then, he’s built an impressive career creating designs for college sports teams, agencies, and businesses before bringing his talents to MSBA. Read on to learn more about Jamal and his work at MSBA. Tell us a little about yourself.

I was born and raised in Miami, Florida, and stayed in-state for college to study kinesiology at Jacksonville University (JU). I hoped to become a strength and conditioning coach until my roommate showed me how to use Photoshop. Soon after, my career plans shifted. I started working as the graphic designer for my college football team, then transitioned to being the graphic designer for the entire athletics department. After finishing school, I moved up to mid-atlantic with my high school sweetheart to finally experience all four seasons and we’ve called the DMV home since 2020.

Tell us a little about your career.

Any highlights?

My creative career kicked off as a student-athlete at JU – I played on the football team while working as its graphic designer. After finishing my kinesiology degree, I stayed to earn an MFA in Visual Arts while working with the entire athletics department as a graduate assistant. In that role, I still focused on designing social media graphics, creating posters and taking photos, but I also got to produce ESPN broadcasts and help redesign our website. After completing the visual arts degree, I worked at JMU

in a similar role and started picking up freelance projects, which led to my web design role that brought me to Maryland.

The biggest highlight was designing for JMU Softball’s team during their 2021 postseason run that ended in the Women’s College World Series.

What did you do before you joined the MSBA? I worked as a graphic designer and photographer in the sports industry.

I worked with several college athletics departments, sports agencies, associations and small businesses on projects ranging from motion design to app design.

Tell us about your role at the MSBA. I mostly design print and digital materials, working on large scale prints, programs, logos, email banners and almost everything in between. Occasionally, I’ll come out to conferences and photograph events as well.

What's your favorite part of your job?

The wide range of projects I get to work on is great. There’s always a different challenge to work on, and that keeps me on my toes. I’ve knocked quite a few projects off of my creative bucket list in my brief tenure at MSBA. What is an interesting fact about you we wouldn’t find on your resume?

I’m a Certified Personal Trainer and I coach HIIT Boot Camps a few times a week.

What do you do to de-stress or unwind?

Lift weights, hike or read books about the brain. When I’m feeling really competitive, I’ll race my dog (three-year-old Rottweiler/ lab mix) up a hill or across a soccer field.

He usually beats me, but sometimes he’ll get distracted and I can eke out a win.

A Miami native, Adjamah discovered his passion for graphic design while studying kinesiology at Jacksonville University, where he worked as a graphic designer for the athletics department.

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EXECUTIVE DIRECTOR'S MESSAGE | INSIGHTS & UPDATES

Adapting, Advocating, Educating: MSBA’s Commitment to Maryland Attorneys Five years ago, we entered unprecedented times as COVID-19 was officially declared a pandemic, prompting then-Governor Hogan to issue a two-week stay-at-home order. The pandemic fundamentally changed how we live and work.

At MSBA, we quickly adapted—embracing remote work and focusing on providing timely support to our members. We delivered frequent updates on regulatory and procedural changes, offered complimentary CLE programming, and hosted online programs prioritizing connection and wellness. Today, we continue to apply lessons learned during that period, balancing in-person and virtual engagement while

reimagining how we meet the evolving needs of Maryland’s legal community.

COVID-19 is not the only change the legal profession has had to navigate over the past five years, and MSBA remains committed to supporting our attorneys in an ever-evolving environment. Below are several recent and forthcoming initiatives designed to support our members: Decisis – A comprehensive legal research tool powered by LexisNexis technology. Decisis offers nationwide case law, advanced search capabilities, and a user-friendly interface—a $2,000 annual value included with your MSBA membership..

Smokeball Bill – A trust and billing software designed to help attorneys streamline processes and maintain compliance. Smokeball Bill works wherever you bank and is a $650 annual value included in your membership.

Ethical Considerations for AI Use in the Legal Profession – A new micro-publication from our AI Taskforce to help members navigate the ethical implications of emerging technology.

MSBA continues to actively advocate for our profession as well. During this year’s Lobby Day in Annapolis, we advocated for courthouse security enhancements to protect attorneys, court personnel, judges, jurors, litigants, and everyone who needs to access our courthouses.

We also successfully lobbied against the taxation of legal services, which was notably left out of a Business to Business tax bill (HB 1554/SB 1045)(“B2B Tax Bill”) proposed in early March. MSBA remains vigilant and will continue to oppose the B2B Tax Bill, and any legislation that will raise costs for Maryland based law firms. Additionally, without partners at the Maryland Access to Justice Commission, MSBA advocated for the permanent funding of the Access to Counsel in Evictions (ACE) law, which has proven critical to keeping Marylanders housed and safeguarding families from the harmful ripple effects of eviction.

Without this funding, thousands of vulnerable

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MSBA continues to apply lessons learned during the pandemic, balancing in-person and virtual engagement while reimagining how we meet the evolving needs of Maryland’s legal community. tenants risk losing access to vital legal representation and the stability it provides.

MSBA is also preparing to bring the fight to Capitol Hill during ABA Day. Our team will meet with Maryland’s Senators and Representatives to advocate for the preservation—and, where possible, the expansion—of funding for the Legal Services Corporation. Thousands of Marylanders rely on the critical services provided by Maryland Legal Aid and other Legal Services Organizations. MSBA stands in strong partnership with the Maryland Access to Justice Commission to champion continued funding and to ensure that all Marylanders have meaningful access to our courts and the ability to seek the justice they deserve.

Finally, MSBA is preparing for our biggest event of the year, the Legal Summit & Annual Meeting. As of today, we are already seeing trends that suggest this event will be our largest in recent history. MSBA will welcome 100+ speakers across 75+ programs, connect thousands of attorneys in various networking events, celebrate the accomplishments of attorneys and judges serving our communities, and recognize the hard work of our many leaders from sections, committees, and the MSBA Board of Governors. I hope you’ll be part of this historic event. Register Here.

Anna Sholl, Executive Director

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The McCammon Group is pleased to announce our newest Neutral

Hon. Christopher Panos (Ret.) Retired Associate Judge, Circuit Court for Baltimore City The Honorable Christopher Panos has joined The McCammon Group after eleven years of dedicated service as an Associate Judge on the 8th Judicial Circuit Court for Baltimore City. He previously served as an Associate Judge for the District Court of Baltimore City and as a Special Master for the Family Division of the Circuit Court for Baltimore. Prior to his tenure on the bench, Judge Panos enjoyed a successful career in civil litigation including family law, bodily injury, and commercial matters. He is a Life Fellow of the Maryland Bar Foundation and a Fellow of the Baltimore City Bar Foundation. Judge Panos’ memberships include the International Association of LGBTQ+ Judges, Maryland State Bar Association, and Bar Association of Baltimore City.

Judge Panos co-chaired the BABC Bench-Bar Committee and chaired the BABC Family Law Committee. Additional memberships have included the MSBA Standing Committee on Professionalism and the MSBA Family and Juvenile Law Section Council. Judge Panos now brings this exemplary record of excellence and experience to The McCammon Group to serve the mediation and arbitration needs of lawyers and litigants in Maryland and beyond.

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